The court established that contradictions in the prosecutrix's statements and the applicant's lack of criminal history justified the granting of bail.

JUDGMENT :

Rajesh Singh Chauhan, J.

1. Heard Sri Anurag Singh, learned counsel for the applicant and Sri Ashok Kumar Singh, learned Additional Government Advocate for the State.

2. As per learned counsel for the applicant, the present applicant-Chotu is languishing in jail since 03.12.2024 in Case Crime No.428/2024, under Section 70 (1), 140(3) B.N.S., Police Station Tambour, District Sitapur.

3. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.

4. Attention has been drawn towards the impugned First Information Report (in short F.I.R.) wherein the allegation has been levelled against three accused persons including the present applicant. The present applicant and the accused No.1 are father and son. The impugned F.I.R. has been lodged pursuant to the direction being issued by the learned trial court under Section 173 (4) B.N.S.S.. As per the allegation of the F.I.R., the incident in question took place on 18.03.2024, but the application under Section 173 (4) B.N.S.S. has been filed on 10.09.2024 without explaining the delay.

5. Sri Anurag Singh has drawn attention towards Annexure 5, which is a statement of the husband of the prosecutrix,who has categorically indicated that he came know on 18.03.2024 that his wife had been subjected to gang rape by three accused persons and when he reached home, he came to know that all the three accused persons had taken his wife to Punjab by one Balero Car.

6. Learned counsel for the applicant has stated that this is highly improbable that if the wife of one person had been subjected to gang rape and she had been taken to another State by those persons, no F.I.R. to that effect has been lodged, but in that situation and circumstances, the prompt F.I.R. would be lodged, so that the victim/prosecutrix could be traced out at the earliest. Further, attention has been drawn towards the medical examination report, wherein the prosecutrix has recorded her statement before the doctor that she had been subjected to gang rape on 05.09.2024, therefore, there is apparent variation in the prosecution story. Besides, while recording her statement under Section 180 B.N.S.S., the prosecutrix did not mention the date, but has stated that she had been subjected gang rape five months ago and she was kept under captive for 14 days by the accused persons.

7. Learned counsel for the applicant has further submitted that the charge-sheet has been filed in this case. The present applicant is a young person of 20 years having no criminal history of any kind whatsoever against the present applicant. He has undertaken on behalf of the present applicant that the applicant shall not misuse the liberty of bail, if so granted by this Court, and shall abide by all terms and conditions of the bail order and shall cooperate with the trial proceedings properly.

8. On the other hand, learned Additional Government Advocate has opposed the prayer for bail.

9. Without entering into the merits of the case and considering the arguments of learned counsel for the parties, contents and allegations of the F.I.R.s, the fact that there is contradiction in the statement of the prosecutrix recorded befor the doctor and recorded under Section 180 B.N.S.S, the present applicant is languishing in jail since 03.12.2024 without any criminal antecedents and the undertaking given on behalf of the applicant that he shall not misuse the liberty of bail and shall cooperate in the trial proceedings, the applicant is entitled to be released on bail in this case.

10. Accordingly, the instant bail application is allowed.

11. Let the applicant-Chotu be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall file an undertaking to the effect that he shall not seek