Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2606 of 2019 Applicant :- Siyaram Opposite Party :- State Of U.P.
Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Siyaram in connection with Case Crime No. 468 of 2018, under Sections 323,376-D,506 IPC, P.S. Jalalabad, District Shahjahanpur.
Heard Sri Radhey Shyam Shukla, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned A.G.A., along with Sri Abhinav Tripathi, learned counsel appearing for the State.
The submission of the learned counsel for the applicant is that in the FIR the allegation is one of attempt and not accomplished rape, and that too, is confined to co-accused, Awadhesh whereas against the applicant, Siyaram and an unknown offender it is about waylaying the prosecutrix and her husband and threatening them. The FIR is authored by the prosecutrix. In the statement of the prosecutrix under Section 161 Cr.P.C., the allegation against the applicant is one of waylaying the prosecutrix and her husband, and assaulting them, but that of dragging the prosecutrix and ravishing her is against the co-accused, Awadhesh. It is also submitted that in the statement under Section 161 Cr.P.C. the case has been improved even against the co-accused from an attempted rape to an accomplished act. It is further pointed out by learned counsel for the applicant that in the statement under Section 164 Cr.P.C., the allegation against the applicant and co-accused, Awadhesh is of waylaying the couple, with the applicant assigned the role of threatening them at gun point. It is said that the applicant, co-accused, Awadhesh and an unknown offender beat up the prosecutrix and her husband, where the applicant is said to have held her husband captive at gun point. Here also the allegation of rape is confined to co-accused, Awadhesh with the third unknown, holding the prosecutrix down. During her medico legal examination the prosecutrix again has specifically assigned the role of ravishing her to Awadhesh, whereas a general allegation of waylaying the couple and assault, is assigned to all the three accused. The submission of the learned counsel for the applicant is that the prosecution case has been improved from that of an attempted rape in the self authored FIR by the prosecutrix, to an accomplished act in subsequent accounts, which makes the prosecution case shaky and undependable. It is further argued by learned counsel that the allegation of rape throughout is against Awadhesh, co-accused, but not against the applicant. It is in the last argued that a perusal of the medico legal report shows that there is no such injury indicated in the medico legal examination to the genitals, as may be compatible with a case of violent rape, alleged.
Learned A.G.A. has opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the case in the self authored FIR lodged by the prosecutrix is one of attempt which has been subsequently improved to that of rape, in the later accounts during investigation, the fact that throughout the various statements of the prosecutrix the allegation of attempt or accomplished rape is confined to the co-accused Awadhesh alone, and does not refer to the applicant, the fact that the medico legal report is prima facie not compatible with a case of violent rape, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Siyaram involved in Case Crime No.
468 of 2018, under Sections 323,376-D,506 IPC, P.S. Jalalabad, District Shahjahanpur be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 21.1.2019 BKM/-