- (1.) THIS is second bail application moved on behalf of the accused applicant. Earlier this application was put before the Hon'ble Aditya Nath Mittal, J on 15.4.2014. Keeping view of the fact that first bail application was rejected by Hon'ble Zaki Ullah Khan, J. on 23.4.2014 on merits, it is directed that bail application be listed before appropriate Bench in the next week. On 30.5.2014, application was put before Hon'ble Zaki Ullah Khan, J. who has released this application and ordered to be listed it before appropriate Bench in the second week of June, 2014. As such, this application has come before this Bench.
(2.) I have heard learned counsel for the appellant/applicant, learned A.G.A. for the State of U.P. and learned perused the material available on record.
(3.) LEARNED Counsel for the appellant submits that scriber of the alleged F.I.R. Mohd. Kalid has not been examined as witness in the court whose evidence was very much material about the time and place of alleged arrest of the appellant, copy of the alleged G.D. Rapat has not been proved by its author Vinod Singh,though he was posted in District Lucknow though at the time of the trial. P.W. 5 Durgesh Mishra has deposed that he has arrested the accused persons including the appellant on 28.10.2008 at 12:35 p.m. Contrary to it, alleged victim Km. Barkha and her mother Smt. Hasina have categorically stated in their evidence that the accused persons were arrested in their presence. It has been put by the prosecution that victim Km. Barkha was medically examined on 28.10.2008 at 12:30 p.m. at Lucknow, but two documents relied upon by the prosecution do not reconcile each other and there may be an inference that either the documents are anti time and manipulated or version of the prosecution witnesses is not reliable. This is admitted case of Km. Barkha and her mother Smt. Hasina that the accused persons were not known to them by name and face, prior to the alleged incident and they came to know their names after arrest of the accused persons on an inquiry made by the police. In such circumstances, the time and place of arrest is very material and decisive point of guilt or innocence of the accused persons, that the accused appellant is innocent. He has not committed rape on alleged victim Km. Barkha Mahawat. The appellant is a youth of about 26 years and languishing in jail since 28.10.2008. He has no criminal antecedents except to present case along with one Gangster Act which has been imposed after lodging of the present case.;