Court No. - 48 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32705 of 2009 Petitioner :- Vinod @ Jhallar Respondent :- State Of U.P. Petitioner Counsel :- Rajiv Dwivedi Respondent Counsel :- Govt Advocate Hon'ble Surendra Singh,J.
Applicant-Vinod @ Jhallar seeks bail in Case Crime No.
409 of 2009 under Sections 366, 376 I.P.C., Police
Station Bargarh, District Chitrakoot.
Heard learned counsel for the applicant, learned AGA
for the State and perused the material placed on record.
It is contended by the learned counsel for the applicant
that as per the medical opinion, it cannot be said that
any rape was committed on the victim Km.Dabli.
Relying upon the decision of Apex Court in Bibhishan
Vs. State of Maharashtra, 2008 (3) Supreme Court
Cases (Cri) 163, he has further submitted that absence
of injury or mark of violence on her body further
demolishes the story of prosecution. He has further
submitted that the statement recorded under Section
164 Cr.P.C. of the victim cannot be accepted on the
face of it and it is very unnatural and against human
conduct that she has not resisted at the time of the
commission of the rape. He has further contended that
the entire evidence with the material placed on record
goes to show that the victim has left her parental house
and married with the applicant on her own volition and
had lived along with him for two months. Both the
applicant as well as victim have also preferred writ
petition before the Division Bench of this Court for
quashing the First Information Report and their arrest
was stayed. He has further contended that as per
certificate issued by the Principal, Rajkiya Inter College,
Bargarh, Chitrakoot, the date of birth of the prosecutrix
is 2.11.1991, thus she was not a minor on the alleged
date of incident. He further submits that her entire
conduct clearly shows that she was consenting party to
the sexual intercourse and if this was so, the applicant
is entitled to be released on bail at this stage. The
applicant is in jail since 26.8.2009 and the trial has not
commenced and is likely to take some more time to
conclude and more over he has got no criminal history
to his credit.
The bail is, however, opposed by the learned AGA.
The points pertaining to nature of accusation, severity of
.2.
punishment, reasonable apprehension of tampering the
witnesses,
prima facie, satisfaction regarding proposed evidence
and genuineness of the prosecution case were dully
considered.
Considering totality of circumstances, I consider it a fit
case to enlarge the applicant on bail.
Without expressing any opinion on the merits of the
case, let the applicant-Vinod @ Jhallar involved in
aforesaid crime be released on bail on his furnishing a
personal bond of Rs. 250,000/- and two sureties each in
the like amount to the satisfaction of the court
concerned and executing an undertaking in the
following terms:
1. The applicant shall appear on every date
before the trial court
and shall not seek unnecessary adjournment.
2. The applicant shall not tamper with evidence in
any manner.
3. The applicant shall report to the court of C.J.M.
Concerned
in the first week of each month till the conclusion
of the trial to show his good conduct and
behaviour. In default of any of the aforesaid
conditions, the bail granted to the applicant shall
be deemed to be canceled and he shall be taken
into custody by the court concerned.
Order Date :- 19.1.2010
SFH