RAVINDRA SINGH,J. - (1.) HEARD Sri A.P.Singh Raghav, learned counsel for the applicant, learned A.G.A.for the State of U.P., Sri Jai Singh Chandel, learned counsel appearing on behalf of the complainant and perused the record.
(2.) THIS bail application has been filed by Gajendra Singh with a prayer that he may be released on bail in case crime no. 239 of 2009 under sections 396, 376, 412 I.P.C., Police Station Arnia, District Bulandshahar. The facts in brief of this case are that the FIR has been lodged by Narendra Kumar on 31.7.2009 at 5.25 a.m. in respect of the incident which had occurred in the night of 30/31.7.2009 at 2.00 a.m. It is alleged that 7 or 8 unknown miscreants committed the alleged offence, in the said incident, the deceased Shiv Kumar and his wife were beaten badly by the miscreants by using sariya, knife and country made pistols, they sustained grievous injuries, old mother has also sustained injuries, the miscreants have looted the clothes, jewellery and cash etc., several persons arrived at the place of occurrence, the miscreants fled away towards jungle, the deceased Shiv Kumar and his wife Smt. Brijesh ,who has sustained injuries, taken to Jatia Hospital, Khurja from where they were referred the Medical College, the deceased Shiv Kumar succumbed to his injuries in the Medical College whereas Smt. Brijesh was under treatment, the injured Smt. Brijesh was unconscious that is why she could not be interrogated but the statement of injured Smt. Brijesh was recorded on 12.8.2009 who stated that on 30.7.2009 the applicant and co-accused Bobby and Yatindra came to her house in the night and demanded the mobile because the deceased had purchased the mobile from the co-accused Bobby few days prior to the alleged incident but the deceased had refused to return the mobile by saying that once it has been sold to him it cannot be returned. Then the applicant and co-accused persons hurled abuses, she came Smt. Brijesh came for mediation, she was also pushed down and the cost of mobile Rs. 800/- was thrown by them, the same was kept by her in her blouse. In the night, at about 2.00 a.m. the applicant and other co-ccused Bobby and Yatindra were identified by her, then they caused injuries. The applicant applied for bail before the Sessions Judge, Bulandshahar, who rejected the same on 13.10.2009.
(3.) IT is contended by learned counsel for the applicant that the applicant is not named in the FIR, the alleged offence has been committed by unknown miscreants, the applicant has not been put up for identification, the injured Smt. Brijesh had given a contrary version during investigation on 13.8.2009, the statement of Smt. Brijesh was recorded under section 164 Cr.P.C. which is not in consonance with her statement recorded by I.O. under section 161 Cr.P.C. by the I.O. and a new story of rape has also been added whereas according to FIR and her statement recorded under section 161 Cr.P.C. by the I.O.there was no allegation regarding the rape but after great thought and consultation she made the allegation against the applicant that he had committed the rape with her, again her statement was recorded on 19.8.2009 in that statement she made statement regarding the rape, thereafter she was medically examined on 14.8.2009 on the medical examination report no recent injuries could be detected, according to the supplementary medical report dated 31.8.2009, no spermatozoa dead or alive was found in vaginal smear and no definite opinion about raped could be given. There was a dispute between the applicant and the deceased in favour of the sale of mobile phone on account of that dispute the applicant and other co-accused persons have been falsely implicated in the present case, the applicant is not having any criminal antecedent, he is in jail since 14.8.2009, he may be released on bail.;