Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51747 of 2021 Applicant :- Shivam Singh Opposite Party :- State Of Up Thru Secretary Ministry Of Home Govt Of Up Counsel for Applicant :- Manvendra Singh Counsel for Opposite Party :- G.A.,Jitendra Singh
Hon'ble Om Prakash-VII,J.
Heard Sri Manvendra Singh, learned counsel for the applicant, Sri Jitendra Singh, learned counsel appearing for the informant and learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. It is further argued that no prima facie case is made out against the applicant. If entire prosecution case is taken into consideration then also only allegation against the applicant is for eve teasing and not commission of rape. It is also argued that FIR was lodged by the victim herself. Had the offence of rape been committed by the applicant upon the victim this fact would have come in the FIR itself. Referring to the statement of the victim recorded on 09.01.2021 and 11.01.2021 it was further argued that nothing was stated by the victim in it to attract the offence under Section 376 IPC. For the first time after a gap of about one month in the statement under Section 164 Cr.P.C. offence of commission of rape was levelled against the applicant. Referring to the aforesaid fact it was further argued that statement under Section 164 Cr.P.C. is based on after thought and advise. At no point of time the applicant raised any demand of dowry nor caused cruelty or harassment to the victim in lieu of said demand. Applicant has been implicated in this matter being the family member of the husband of the victim. It is next contended that applicant is in jail since 23.09.2021 having no criminal history.
On the other hand, learned AGA as well as learned counsel for the informant argued that FIR is not an encyclopedia. If allegation regarding commission of rape was not disclosed in the FIR this fact itself will not be sufficient to disbelieve the prosecution version. Referring to the statement of the victim under Section 164 Cr.P.C. it was argued that victim has supported the prosecution case regarding the commission of offence of rape by the applicant upon the victim. Referring to the nature of the offence it was also argued that if allegation for the aforesaid offence has not been levelled in the FIR in actual words, the statement recorded under Section 164 Cr.P.C. cannot be disbelieved. A prima facie case is made out.
Considering the facts and circumstances of the case, the submissions made by the learned counsel for the parties and keeping in view the nature of the offence, complicity of the accused, scrutinizing the facts mentioned in the FIR, statement of witnesses recorded under Section 164 Cr.P.C., medical evidence and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Shivam Singh involved in Case Crime No. 01 of 2021, under Sections 498-A, 323, 376, 506 I.P.C. and Section 3/ 4 D. P. Act, P.S. Mahila Thana, District Fatehpur be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions :
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 22.12.2021 Sachdeva Digitally signed by OM PRAKASH Date: 2021.12.22 13:49:05 IST Reason: Document Owner Location: High Court of Judicature at Allahabad