Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21785 of 2021 Applicant :- Vipin Tiwari Opposite Party :- State of U.P.
Counsel for Applicant :- Chandra Shekhar Mishra,Bhavya Sahai,Brijesh Sahai(Senior Adv.) Counsel for Opposite Party :- G.A.,Ali Hasan,Khwaja Shamshad Ahmad,Om Prakash,Rajiv Lochan Shukla
Hon'ble Rajendra Kumar-IV,J.
Heard Sri Brijesh Sahai, learned Senior Counsel assisted by Sri Bhavya Sahai, learned Counsel for the applicant; learned AGA for State as well as Sri Rajiv Lochan Shukla, learned Counsel for complainant and perused the material available on record.
This is second bail application filed on behalf of the applicant. The first bail application of the applicant was dismissed as withdrawn with liberty to file afresh by this Hon'ble Court vide order dated 23.03.2021 passed in Criminal Misc. Bail Application No.8859 of 2021.
Accused-applicant, involved in Case Crime No.590 of 2020, under Sections 376-D, 395, 386, 323, 354, 354-A, 354-B, 354-D, 412, 34 I.P.C. & 67/67-A of the I.T. Act & 5/6, 9/10 POCSO Act, Police Station Sipri Bazar, District Jhansi, applied for bail.
Learned counsel for the applicant submits in the following manner :-
(i) Applicant is a student, he is innocent and has been falsely implicated in the present case due to college rivalry. He has committed no offence. Entire prosecution story is false and fake, not worthy to credence. There is general allegation against the present applicant. No case is made out in the alleged offence.
(ii) Applicant is not named in the FIR, his name came into light during investigation. He is not subjected to identification from the victim by Investigating Officer. Applicant has been recognized from the college record.
(iii) No allegation of rape has been levelled against the applicant, at the most if prosecution story is assumed to be true, offence against the applicant goes within the purview of Section 354 IPC.
(iv) Name of the applicant, in the person committing rape is not disclosed in the statement of victim recorded under Section 164 Cr.P.C. Prosecutrix does not know the accused from the before and it is not on record how victim recognized the accused. Present case is solely based on the statement of victim recorded under Section 164 Cr.P.C.
(v) Although the prosecution story is serious and shameful to the society but applicant has no concern with the present crime. Neither there is any eye witness nor any independent witness who has seen the alleged incident. Main allegation of rape against co-accused Rohit Tiwari. Video recording is said to be made by the co-accused Sanjay Kushwaha.
(vi) Applicant is in jail since 12.10.2020 without any credible evidence and having no criminal history.
(vii) There is no possibility of the applicant's fleeing away from the judicial process or tampering with the witnesses. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and he will continue present before the Court till disposal of the trial. Due to heavy pendency of cases in the Court, there is no possibility of early conclusion of the trial.
Learned A.G.A. as well as learned Counsel for the complainant have vehemently opposed the prayer for bail and submitted that allegation in the FIR is serious one and very shameful to civilized society. Prosecutrix was subjected to humiliation and raped by the accused-applicant along-with other co-accused persons. Applicant's name came into light during investigation. Applicant has been recognized by the photograph of office record of the college. As per medical report there is injury on the private part of the victim and her hymen was found torned which reflects that she was raped. Bail Applications of co-accused persons, namely, Sanjay Kushwaha and Shailendra Nath Pathak have already been rejected on 21.10.2021 and 20.12.2021 by the co- ordinate Bench of this Court in Criminal Misc. Bail Application Nos.14535 of 2021 and 10981 of 2021 respectively.
Considering the facts and circumstances of the case, rival contention of learned counsel for the parties, nature of allegation levelled against the applicant as well as other co-accused persons, seriousness of offence, manner in which incident took place, evidence collected by Investigating Officer during investigation and without commenting upon the merits of the case, I do not see any good ground to release the applicant on bail. Applicant deserves no bail.
Accordingly, the bail application is hereby rejected.
Order Date :- 21.12.2021 Sumaira/I.A.Siddiqui