Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41239 of 2018 Applicant :- Tinku Opposite Party :- State Of U.P.
Counsel for Applicant :- Shyam Surat Shukla Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Tinku in connection with Case Crime No.375 of 2018, under Sections 147, 323, 324, 308, 354, 354-B, 452, 504, 376-D, 377 I.P.C. & 5/6 POCSO Act, P.S.
Modinagar, District Ghaziabad.
Heard Sri S.S.Shukla, learned counsel for the applicant and Sri R.K.Maurya, learned AGA along with Sri Abhinav Tripathi, learned counsel on behalf of the State.
The submission of the learned counsel for the applicant is that the case is essentially one of assault from both sides where both sides have sustained multiple injuries by more than one person on each side. The learned counsel for the applicant has taken the Court through the FIR giving rise to the present crime where there is an allegation of assault upon the applicant by as many as eight persons. Learned counsel has emphasized that there is a cross version of the occurrence registered at the instance of the applicant's side giving rise to case crime No. 376 under Section 147, 323, 504, 506, 452 I.P.C. and Section 3(2) (va) SC/ST Act alleging assault by the prosecution side by as many as four named and three unnamed persons leading to extensive injuries on the applicant's side also. Learned counsel has shown to the Court injury reports of eight injured on their side and the five injured on the side of the prosecution. It is emphatically submitted that in the FIR, giving rise to the present crime, there is no hint about any kind of sexual assault. The FIR in the present case as also that lodged by the applicant's side - the cross version, shows it to be a case of a free fight where it is difficult to ascertain at this stage as to who is the aggressor. But, he submits that whatever it be, in the genesis of the prosecution case, there is no allegation of sexual assault involved. It is submitted that the said case has been introduced lateron during investigation through the statement under Section 161 Cr.P.C. and still later through the statement under Section 164 Cr.P.C.. There is absolutely no basis to the allegation. In the nature of the offence, if at all, it is a case of a physical altercation between the two sides engaging a number of family members and associates on both sides.
It is further argued that co-accused Jitendra and Shiv Singh @ Rahul @ Chief Singh, who are identical circumstanced as the applicant, have been admitted to the concession of bail by orders of date passed in Criminal Miscellaneous Bail Application No. 40655 of 2018 (Jitendra Vs. State of U.P.) and in Criminal Miscellaneous Bail Application No. 40670 of 2018 (Shiv Singh @ Rahul @ Chief Singh Vs.State of U.P.). Therefore, the applicant is entitled to parity.
Learned A.G.A. has opposed the plea for bail and submits that the allegations relating to sexual assault are furnished in graphic detail in the statement of the two prosecutrixes under Section 164 Cr.P.C. He, however, does not deny the fact that in the FIR giving rise to the present crime there is not a hint about any such offence involving the two prosecutrixes.
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, the fact that in the FIR there is no mention of any case of sexual assault affecting the two prosecutrixes, the fact that it is a case of a physical altercation indicating a free fight on both sides regarding which cross FIRs have been lodged 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 Tinku involved in Case Crime No. 375 of 2018, under Sections 147, 323, 324, 308, 354, 354-B, 452, 504, 376-D, 377 IPC and 5/6 POCSO Act, P.S. Modinagar, District Ghaziabad 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.
Order Date :- 29.10.2018 R./