Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43173 of 2017 Applicant :- Yaqoob Opposite Party :- State Of U.P.
Counsel for Applicant :- Pankaj Kumar Tyagi Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
Learned counsel for the applicant contends that the applicant is not named in the F.I.R. lodged after inordinate delay by the prosecutrix through application under Section 156(3) Cr.P.C. moved on 1.9.2016 with the allegations that on 27.8.2016 at about 01:00 p.m. her Devar Nazim and one Alamdeen came at her house and called her husband and upon opening the door by her both of them locked her in a room and by committing mar- pit and throwing her on ground forcibly committed rape on her on pistol point and on her alarm her husband, son and another person as well as the village people arrived at the spot when the miscreants fled away; that in her statement under Section 161 Cr.P.C. the husband and son of prosecutrix and Furkan have corroborated the allegations of F.I.R. and have not named the applicant as one of the miscreants, however, in her statement under 161 Cr.P.C. recorded after inordinate delay on 9.3.2017, statement before the Medical Officer at the time of medical examination with considerable delay on 20.3.2017 and the statement under Section 164 Cr.P.C. with further delay recorded on 23.3.2017, by way of improvements the prosecutrix against the allegations of rape against two persons, stated that the named two persons as well as the applicant and one Mooda also entered in her house and all the four committed rape on her; that there are material contradictions in the statements of prosecutrix under Sections 161 & 164 Cr.P.C. and they are also in contradiction with the averments made in F.I.R.; that there is no incriminating evidence against the applicant; that the case of applicant is clearly distinguishable from Nazim and Alamdeen; that the applicant has no criminal history; that the applicant undertakes that he will not misuse the liberty of bail; that the applicant is in custody since 7.9.2017.
Learned A.G.A. opposed the prayer of bail.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Yaqoob be released on bail in Case Crime No.816 of 2016, under Section 376D I.P.C., P.S. Kairana, District Shamli, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
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.
Order Date :- 8.11.2017 Kpy