Y.K.SANGAL,J. - (1.) THIS is an application for cancellation of the bail order dated 07.08.2008 passed by the District and Sessions Judge, Mathura in case crime number 238 of 2008 under Section 376 and 511 IPC, relating to P.S. Naujhil, district Mathura.
(2.) HEARD learned counsel for the applicant, learned AGA for the State and perused the record. As per affidavit annexed with the application, on 19.07.2008 respondent nos. 2 to 4 have committed gang-rape with prosecutrix, wife of Kamal and daughter-in-law of the informant and after committing the gang-rape accused persons have administered poison to the prosecutrix with an intention to kill her, resulted she became unconscious and she was taken to Naujhil Hospital but Doctor referred for treatment to Swarn Jayanti Community Hospital, Mathura where she was admitted on the same day and remained hospitalized up to 21.07.2008 and when she recovered only then she was discharged from the hospital and told to the informant that the accused persons have committed gang-rape with her and administered poison to her then the report was lodged at P.S. by the informant on 21.07.2008 at 11:30 P.M. and case was registered against the accused persons under Section 376 and 328 IPC. Statement of the victim was also recorded under Section 164 Cr.P.C. and statement of other witnesses were also recorded under Section 161 Cr.P.C. They have corroborated the case of the first information report.
(3.) ACCUSED persons moved application for bail before the Magistrate but the same was rejected then accused persons applied for bail before the Sessions Judge, Mathura. It was argued that he wrongly and illegally without looking into the facts and circumstances of the case, granted bail to the accused persons-respondent nos. 2 to 4 saying that only case under Section 376 and 511 IPC is reported in the matter by the I.O. Learned Sessions Judge has wrongly observed that real brothers and nephew cannot commit gang-rape simultaneously and there is delay in lodging the first information report. It was further stated that after enlargement on bail, respondent nos. 2 to 4 have threatened the prosecutrix to withdraw the case and they have also threatened to the informant for the same purpose and they have misused the liberty of the bail. Counter affidavit was filed on behalf of the accused respondent nos. 2 to 4 denying the case of the application and it was averred that father of the respondent nos. 2 to 4 have made a complaint to the S.S.P. Mathura on 28.03.2003 that Bachhu Singh, informant of the present case wants to fabricate case against them and want to implicate the family members in a false case due to inimical terms between them. This case is a counter-blast of the same application and no such offence as said in the first information report of the present case has taken place. A false story has been cooked up .Witnesses / neigbourours have also not supported the case of the first informant report. Injury report also not corroborated the version of the informant /prosecutrix and the first information report. There is inordinate delay in lodging the first information report. After preparation of the charge-sheet, statement under Section 164 Cr.P.C. was got recorded on 05.09.2008. An information was made by the Doctor to police that she was examined by him in the hospital and Doctor has also informed the police after her examination that she was admitted in the hospital for treatment in a case of administering to her poison and she was complaining pain in her abdomen. Complaint of rape was not reported by the Doctor. There is no illegality, invalidity and impropriety in the bail order passed by the learned Sessions Judge and he has applied his discretion in granting the bail. The averments regarding threatening after releasing on bail by the accused persons are vague and only made with an intention to give colour to the case. No specific date, time and place for threatening has been disclosed and authorities are never informed about such threatening.;