- (1.) SHIV Shanker, J. This is the first bail application moved on behalf of applicant Raj Kumar, son of Ramji Lal, in Case Crime No. 183/06, under Section 376, IPC, P. S. Raya, District Mathura.
(2.) HEARD learned Counsel for the applicant, learned A. G. A. and Sri Rajeev Goswami, learned Counsel for the complainant as well as perused the whole record. It is submitted by learned Counsel for the applicant that the bail application of co-accused Deshraj has already been allowed by Hon'ble Mrs. Saroj Bala in C. M. B. A. No. 19805/06 on merit of the case as allegation of the present applicant and co-accused Deshraj was made by the prosecutrix for committing offence of gang rape. The case of present applicant is also similar with the co-accused on the same footing. On the other hand, it is submitted that there is criminal history against the applicant and he was also trying to tamper with the prosecution witnesses. Learned Counsel for the complainant has invited attention to the case of the State (through Deputy Commander of Police, Special Branch), Delhi v. Jaspal Singh Gill , 1984 Crilj 1211 (SC) regarding seriousness of the offence. Therefore, his bail application is not liable to be allowed.
(3.) ACCORDING to the prosecution case, the incident is said to have taken place on 15-7-2006, but the F. I. R. was lodged on 17-7- 2006 at 7. 30 p. m. against the present applicant and co-accused Deshraj. The bail application of co-accused Deshraj had already been allowed by this Court on the following grounds : "i have taken into consideration the submissions made on behalf of both the parties. The prosecutrix, a married woman is said to have been subjected to gang rape by two persons including the applicant but no mark of injury on body or private part was found in her medical examination. In view of these facts and without expressing any opinion on the merits of the case, I consider it to be a fit case for bail. " There is no dispute on behalf of opposite party that the role of present applicant is also identical on the same footing with the co-accused Deshraj. So far as the criminal history against the applicant is concerned, one Case Crime No. 05/01, under Sections 384/504, IPC was registered, wherein the proceedings were initiated under Section 3 U. P. Control of Goondas Act, 1970 but he has not been asked to remove himself out side the area as enshrined in Section 3 sub-clause (3) of the Act. There is no criminal history in the year 2002 to 2007 except present case. He is in judicial custody in the above noted case. After that there is no allegation against the applicant that prosecution witnesses are being threatened by the persons of the applicant according counter-affidavit filed by Asha Devi which reveals that she was being pressurized earlier before surrendering him in jail in this regard, copy of application moved to S. S. P. Mathura has been filed as Annexure-1. It is worthwhile to mention here that it was not firstly giving to the concerned police station nor such type of complaint was entered in the general diary of the concerned police station and this possibility cannot be ruled out that same has been moved to S. S. P. , Mathura against the applicant for getting benefit of rejection of bail as the facts of decision of Apex Court is distinguishable. There is no dispute regarding parity of the case.;