Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47345 of 2018 Applicant :- Vikas Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajesh Kumar Sharma,Abhas Sharma Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Vikas in connection with Case Crime No. 729 of 2017, under Sections 328,376-D, 506 I.P.C., P.S. Khoda, District Ghaziabad.
Heard Sri Abhas Sharma, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., alongwith Sri Raj Kumar Yadav appearing for the State.
The submission of the learned counsel for the applicant is that he is innocent and has been falsely implicated. It is pointed out that in the FIR, there is an incredible allegation that the applicant and his brother co-accused, Rakesh on the pretext of offering her a job, called her over and attempted to become physically intimate, which she repudiated. It is said that on 17.12.2017, when she was at home and all the family members were away to attend the funeral of her maternal grand father, the two brothers came over, again on the same pretext of arranging a job for her and offered her a cold drink, laced with some deleterious substance, which she drank, and on account of it, lost control over her body. Thereafter, the two ravished her, and, made obscene video clips, threatening her that in case she said anything or did anything against them, they would put the same on the face-book. It is pointed out that in the statement under Section 161 Cr.P.C., the allegation of rape is confined to co-accused, Rakesh and not against the applicant, but again, in the statement under Section 164 Cr.P.C., the allegation has figured against both brothers. In the statement under Section 164 Cr.P.C. it is said that she came to know about the rape when the two brothers showed her the video they had captured, after she lost consciousness. It is submitted that the prosecution story in the first place is incredible, inasmuch as, there is no good reason why inside her home, the prosecutrix who was no friends with the applicant or his brother would consume a cold drink offered, in such circumstances, as depicted. It is further argued that the allegation of rape is there against the applicant in the FIR, and, the statement under Section 164 Cr.P.C. but in the statement under Section 161 CrP.C. the allegation of rape is confined to the applicant's brother, Rakesh. Thus, the prosecution story is wavering and inconsistent. It is also alleged on the strength of an averment in paragraph 12 of the affidavit that the prosecution has been brought against the two brothers, on account of the fact that Rakesh and the prosecutrix were betrothed, but due to some dispute in the settlement of that marriage, the alliance was called off, with so much done that gifts exchanged were returned, after the aforesaid matrimonial alliance was called off. Rakesh's marriage was fixed elsewhere, and, thereupon in order to pressurize the applicant, and his family to marry Rakesh and the prosecutrix, or in the alternate suffer a false prosecution, to spite them for breaking up the alliance, the present bogus FIR has been lodged. It is further pointed out that a perusal of the medico legal examination does not at all show any telltale signs of rape. There are no internal or external injury which would decidedly be there, if it were a case of gang rape, by two men.
Learned A.G.A. opposed the prayer for bail and submits that the stand of the prosecutrix is consistent in the FIR and the statement under Section 164 Cr.P.C., though, it is conceded that in the statement under Section 161 Cr.P.C. the allegation of rape is not there against the applicant.
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 applicant's role, though, mentioned in the FIR and the statement under Section 164 Cr.P.C. is not there in relation to the offence of rape in the statement under Section 161 Cr.P.C., the fact that no video clip, as claimed by the prosecutrix, has been recovered by the police, despite opportunity being given to them which is not part of the case diary, showing prima facie lack of evidence in support of the charge, the fact that there are no injuries at all sustained by the prosecutrix in the medico legal report, 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 Vikas involved in Case Crime No. 729 of 2017, under Sections 328,376-D, 506 I.P.C., P.S. Khoda, 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 :- 19.12.2018 BKM/-