Allahabad High Court granted bail to Kamlesh in a rape charge (Case Crime No. 216 of 2018) after he alleged false implication, delayed FIR lodging by the victim, and lack of medical examination, without expressing an opinion on the case merits.
Release on bail with personal bond and two sureties subject to conditions not to tamper with evidence or harass the victim.
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Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10677 of 2019
Applicant :- Kamlesh Opposite Party :- State Of U.P. Counsel for Applicant :- Vivek Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Sri Manish Kumar Tripathi has filed his Vakalatnama on behalf of the first informant, is taken on record.
Supplementary affidavit filed on behalf of the applicant after service the copy of the same upon the learned counsel for the State as well as counsel for the first informant, is also taken on record.
Heard learned counsel for the applicant, learned AGA and perused the record.
By means of this application, the applicant, who is involved in case crime no. 216 of 2018, under Sections 376-D, 506 IPC, P.S. Khetasarai, District- Jaunpur, is seeking enlargement on bail during the trial.
It is submitted by the learned counsel for the applicant that the applicant has been falsely implicated in the present case. Earlier wife of applicant had lodged FIR on 19.8.2018 against Ranno Bind (brother of the informant/prosecutrix Nisha) registered as Case Crime No. 141 of 2018, under Sections 376, 452, 307, 504, 506 IPC, P.S. Kheta Sarai, District Jaunpur, in which, this Court vide order dated 18.2.2019 granted bail to Ranno Bind (brother of the prosecutrix/informant) in Criminal Misc. Bail Application No. 7001 of 2019. Thereafter, the prosecutrix lodged FIR on 7.12.2018 through an application dated 15.10.2018 under Section 156(3) Cr.P.C. regarding the alleged occurrence dated 29.9.2018 against the present applicant, his father and one unknown person registered as Case Crime No. 216 of 2018, under Section 376D, 506 IPC, P.S. Khetasarai, District Jaunpur making allegation of committing rape on the prosecutrix by the aforesaid accused persons. It is vehemently submitted that in fact no such occurrence took place, the impugned FIR dated 7.2.2018 has been lodged after much delay, which is counterblast to the FIR dated 19.8.2018 lodged by wife of the applicant against the brother of the prosecutrix. It has also been pointed out that in this case the
prosecutrix refused to get her medical examination conducted and, as such, there is no medical examination report of the prosecutrix is on record. Further submission is that the prosecutrix is major being aged about 24 years as per own case of the prosecutrix. It is also submitted that no prudent person can reach on conclusion that father and son both will together commit such crime as alleged by the prosecution in the FIR dated 7.12.2018. There is no plausible explanation of delay in moving the application dated 15.10.2018 under Section 156(3) Cr.P.C. by the prosecutrix with regard to the alleged incident dated 27.9.2018. The applicant is languishing in jail since 8.12.2018 and the applicant undertakes that in case he is released on bail, he will not misuse the liberty of bail and cooperate in trial.
Per contra, learned AGA as well as learned counsel for the first informant have opposed the prayer of bail by contending that since the prosecutrix has made an allegation of rape against the applicant in the FIR as well as in her statement recorded under section 164 Cr.P.C., therefore, the bail application of the applicant is liable to be rejected.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Kamlesh , be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the
conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
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 :- 13.3.2019 AK Pandey
1 issue framed by the court
Whether the applicant is entitled to bail in a rape charge under Section 376-D IPC given allegations of false implication and delay in the second FIR.
Kamlesh
State Of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
