Allowed

Kishan @ Bhabhuta v. State of U.P.

Allahabad HC19 Nov 2018BAIL/40676/2018

Case brief

AI extract

What is this about?

In this bail application, the single judge granted bail to the applicant charged with rape and related offences. The court noted significant inconsistencies and a delay in recording the prosecutrix's понятный statement, finding these circumstances sufficient for bail without expressing a final opinion on merits.

What did the court decide?

Applicant released on personal bond and two sureties subject to standard bail conditions including no tampering with evidence or witnesses and appearance before the trial court.

Kishan @ Bhabhuta Vs State of U.P. — Bail and Remand | Allahabad HC (2018)

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Court No. - 53

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40676 of 2018

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Applicant :- Kishan @ Bhabhuta Opposite Party :- State Of U.P. Counsel for Applicant :- Praveen Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This is an application for bail on behalf of the applicant Kishan @ Bhabhuta, in connection with Session Trial No. 572 of 2017, Case Crime No. 463 of 2017, under Sections 363, 366, 376 I.P.C., Police Station Alapur, District Budaun.

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Heard Sri Praveen Kumar Srivastava, learned counsel for the applicant and Sri Akhilesh Mishra, learned AGA appearing for the State.

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The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, certified by the Chief Medical Officer, Budaun on the basis of an ossification test, she has been opined to be aged about 18 years. It is submitted that the prosecutrix is, therefore, a major. Learned counsel for the applicant has drawn the attention of the Court to the statement of the prosecutrix under Section 161 Cr.P.C. recorded on 08.07.2017 where she has clearly said that on 24.6.2017 at 12.00 in the mid night, she called the applicant, Kishan over phone, and, thereupon he arrived on a motorcycle. The two went up to Budaun riding the motorcycle and onwards to Sahasvan by bus where they stayed at the place of the applicant's aunt ( Bua ) for many days. It is said by the prosecutrix that she went of her free will. She was asked by the applicant's aunt to go away with the applicant whereupon she returned home. Learned counsel has pointed out that in the statement under Section 164 Cr.P.C., an entirely different story has been narrated by the prosecutrix that is inculpatory and accuses the applicant and co-accused, Avadhesh of ravishing the prosecutrix, that was recorded seven days after the

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prosecutrix returned/was recovered. There is no explanation as to why there was a delay in getting the statement of the prosecutrix recorded under Section 164 Cr.P.C. Learned counsel for the applicant submits that during this period of seven days, the family of the prosecutrix browbeat her into changing stance and speaking inculpatory.

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In this matter, on the said issue of delay in getting the statement of the prosecutrix recorded under Section 164 Cr.P.C., an affidavit of the I.O. was summoned and when he did not appear, a personal affidavit of the S.P., Budaun was called, who has acknowledged the aforesaid delay to be a lapse and initiated proceedings against I.O.

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Learned A.G.A. has opposed the prayer for bail and submits that the statement under Section 164 Cr.P.C. is clearly inculpatory.

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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 the stance of the prosecutrix in the statement under Section 161 Cr.P.C. that was recorded soon after the prosecutrix returned home/recovered, and, that in the statement under Section 164 Cr.P.C. that was recorded seven days later, which is inculpatory, the two being completely inconsistent, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.

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The bail application, accordingly, stands allowed .

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Let the applicant Kishan @ Bhabhuta involved in Session Trial No. 572 of 2017, Case Crime No. 463 of 2017, under Sections 363, 366, 376 I.P.C., Police Station Alapur, District Budaun 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:

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i) The applicant shall not tamper with the prosecution evidence.

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ii) The applicant shall not threaten or harass the prosecution witnesses.

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iii) The applicant shall appear on the date fixed by the trial court.

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iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.

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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.

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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.

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Order Date :- 19.11.2018 BKM/-

Kishan @ Bhabhuta v. State of U.P.

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Kishan @ Bhabhuta v. State of U.P.

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