- (1.) Ram Bhagat alias Mohan Singh and Pawan Yadav, petitioners have applied for pre-arrest bail under section 438 Cr.P.C. by way of Criminal Misc. No. M-32312 of 2011 and Jitender alias Jitu has applied for regular bail under the provisions of section 439 Cr.P.C. by way of Criminal Misc. No.M-17404 of 2011 in a case registered by way of FIR No. 471 dated 31.12.2010 at Police Station City Narnaul for an offence punishable under sections 328, 342, 376(2)(g) and 120-B of Indian Penal Code. The allegations against the petitioners are that they alongwith others had committed rape upon Anita at the tea kiosk of Jitender, petitioner.
(2.) Learned counsel for the petitioners has submitted that that the occurrence took place on 30.12.2010 at 2.30 PM and the FIR was lodged at 1.15 PM on 31.12.2010. According to him, on the same day, statement of Anita was recorded under section 164 Cr. P.C. and there is a lot of improvement made by Anita in the said statement over the version appearing in the FIR. He has further submitted that Anita had been living with Dipender Yadav at Jaipur, who had committed rape on one Hemlata Yadav, a student at Jaipur and the case had been registered against Dipender Yadav in that regard. He has submitted that Ram Bhagat, petitioner is a witness in the said rape case. He has further submitted that Ram Bhagat is the real uncle of Hemlata Yadav while Pawan Kumar is real maternal uncle of said Hemlata. He has submitted that two persons having the relationship of jija and sala among themselves cannot be believed to have indulged in the offence of rape together.
(3.) Learned counsel for the petitioners has further submitted that the petitioners were found innocent by the police in this case. According to him, in the reply filed by the State in Criminal Misc. No. M-17407 of 2011, it has been mentioned that the petitioners were found innocent because of the reason of material contradictions in the statements of Anita; one on the basis of which FIR was recorded and the other being her statement recorded under section 164 Cr.P.C. According to him, the other reason for finding them innocent was the call details of Ram Bhagat, which clearly showed that he could not be there at the place of occurrence at the time of its taking place. He has also submitted that the police also took into consideration the jail visitors' register, where Anita, the prosecutrix was found visiting Dipender Yadav in jail often. According to him, Anita who had been visiting Dipender Yadav is not any one other than the prosecutrix of this case. Learned counsel for the petitioners has further submitted that the prosecutrix was not found to have been in receipt of any injuries whatsoever except the cigarette burn mark on left arm. He has also submitted that human semen was also not found on the clothes and swab of Anita. According to him, the prosecutrix played in the hands of land mafia and levelled allegations against the sitting MLA also, who has tried to escape during investigation.;