Held that bail is made out for applicants in a rape case where medical reports contradict prosecution's claim of pregnancy, establishing prima facie doubt about the prosecution story. Applicant is to furnish bond and sureties.
Applicants released on trial courts personal bond two reliable sureties of like amount need fulfill conditions.
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Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53213 of 2022
Applicant :- Nanhey And 2 Others Opposite Party :- State of U.P. Counsel for Applicant :- Apul Misra Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for applicants, the learned AGA for the State and perused the record.
Applicants- Nanhey, Aadhar and Ajay seeks bail in Case Crime No. 186 of 2022, under Section 376D, 315, 506 IPC, P.S. Visharatganj, District- Bareilly..
Learned counsel for the applicants has submitted that the applicants are wholly innocent and have been falsely implicated in the present case due to ulterior motive.
Learned counsel for the applicants has next submitted that the victim is a married lady aged about 28 years. It is alleged that in the absence of her husband, the applicants are said to have committed rape on her. It is a specific case of the prosecution that at the time of incident, the victim was carrying three months pregnancy and because of the said rape on her she suffered a miscarriage.
Learned counsel for the applicants has next drawn the attention of the Court to the medical report of the victim wherein the doctor after examination has referred her for ultra sonography and after ultra sonography the doctor has given an opinion that the victim was not pregnant and is having no ultra abdominal injury and a non gravid uterus.
Learned counsel for the applicants has next drawn attention of the Court to the statement of the doctor recorded on 23.9.2022 in which she has categorically stated that the victim was not at all pregnant nor had aborted, however, her husband was insisting to get her aborted and she refused
the same and stated that when the victim is not pregnant, no question for abortion arises.
Learned counsel for the applicants has next submitted that in the backdrop of the aforesaid circumstance, the prosecution story primafacie at this stage appears to be doubtful.
Learned counsel for the applicants has further submitted that the applicants are in jail since 1.10.2022 and have no criminal history to their credit. There is no chance of applicants fleeing away from the judicial process or tampering the evidence as such prima facie a case for bail is made out.
Per contra, learned AGA has opposed the prayer for bail, but could not dispute the aforesaid facts.
Having considered the rival submissions made by learned counsel for both the parties and on perusal of record, it is evident that the victim is a married lady aged about 28 years. It is alleged that in the absence of her husband, the applicants are said to have committed rape on her. It is a specific case of the prosecution that at the time of incident, the victim was carrying three months pregnancy and because of the said rape on her she lost the child in the womb.
As per the medical report of the victim, the doctor after examination has referred her for ultra sonography and after ultra sonography the doctor opined that the victim was not pregnant and was having no ultra abdominal injury and a non gravid uterus. The doctor in his statement recorded on 23.9.2022 has categorically stated that the victim was not at all pregnant nor had aborted, however, her husband was insisting to get her aborted, however, she refused the same and stated that when the victim is not pregnant, no question for abortion arises. In the backdrop of the said circumstances and the medical report, the prosecution story primafacie at this stage appears to be doubtful. The applicants are in jail since 1.10.2022 and have no criminal history to their credit. The charge sheet has already been submitted. There is no chance of applicants fleeing
away from the judicial process or tampering the evidence as such at this stage, prima facie a case for bail is made out.
Let applicants- Nanhey, Aadhar and Ajay be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following conditions :-
(1). The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(2). The applicant shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufÏcient cause, the trial court may proceed against them under Section 229-A IPC.
(3). In case, the applicants misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A IPC.
(4). The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicants is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against them in accordance with law.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the
case.
It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.
In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.
The bail application is accordingly allowed.
Order Date :- 9.12.2022
R
Digitally signed by RAM ASARE MORYA Date: 2022.12.12 13:29:54 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether bail should be granted to applicants accused of rape despite serious charges and allegations of miscarriage.
Whether the prima facie evidence, including medical reports contradicting pregnancy claims, requires granting bail.
Whether conditions can be imposed to ensure the applicants' attendance in trial proceedings.
Nanhey And 2 Others
Rajiv Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
