The submission of the learned counsel for the applicant is that in the First Information Report authored by the prosecutrix, the allegation that figures is one of attempt to rape, and not one of accomplished rape. It is also pointed out that the FIR carries the allegation of attempted rape against a solitary accused, Shubham Parashar. It is submitted that in the statement of the prosecutrix under Section 161 Cr.P.C., the FIR version has been echoed. However, in the statement under Section 164 Cr.P.C. bringing about a generic change to the prosecution case, the prosecutrix has alleged a case of accomplished rape, not just by the solitary nominated accused in the FIR, but by three men that includes the applicant. It is pointed out that looking to the inherently undependable case put forth by the prosecutrix, the police put in a charge sheet against co-accused, Shubham Parashar alone, who is nominated in the FIR exculpating the other two co-accused introduced through the statement under Section 164 Cr.P.C. He submitted, however, that they have been summoned by the trial court on the basis of dock evidence of the prosecutrix dated 28.05.2018 recorded in the ongoing trial through an order under Section 319 Cr.P.C. dated 04.09.2018 passed by the learned Additional Sessions Judge/ F.T.C., Varanasi. It is further argued that the medico-legal report does not show any mark of injury, external or internal. It is lastly submitted by the learned counsel for the applicant that coaccused Shubham Parashar has been admitted to the concession of bail by this Court vide order dated 15.11.2017 passed in Criminal Misc. Bail Application no.35861 of 2017, and, as such, the applicant is entitled to bail on ground of parity.
