Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3313 of 2019 Applicant :- Avnish Gupta @ Banti Gupta @ Minti Gupta Opposite Party :- State Of U.P.
Counsel for Applicant :- Santosh Kukmar Tiwari,Manoj Kumar Mishra Counsel for Opposite Party :- G.A.,Ravi Shanker Tiwari
Hon'ble Ram Krishna Gautam,J.
By means of this application the applicant Avnish Gupta @ Banti Gupta @ Minti Gupta has prayed to release him on bail in Case Crime No. 308 of 2018, u/s 363, 366, 376 I.P.C., & Section 3/4 POCSO Act and Section 3(2)(V) SC/ST Act, P.S. Puwayan, District Shahjahanpur.
Heard learned counsel for the applicant and learned AGA representing the State. Perused the record.
Learned counsel for the applicant has argued that the applicant is innocent and he has been falsely implicated in this very case crime number owing to previous enmity, in which husband of informant is in jail for the offence of murder of son of accused applicant. This case was got registered on 12.5.2018 for occurrence of 5.5.2018. Whereas as per report, informant was instantly known about the alleged enticing and taking of her daughter by accused applicant and two others because at that time, his younger daughter was with prosecutrix. Even then report was filed after seven days. This alleged occurrence of rape was with variation in statement recorded under Section 161 as well as 164 of Cr.P.C. In statement under Section 161 of Cr.P.C., prosecutrix has said that she was taken forcibly by accused applicant by pushing her in a car, in which Geeta was boarding. Subsequently, she was taken in a truck, in which two others were boarding and in jungle present accused applicant along with two others, who were not known by the prosecutrix committed rape with her. Whereas in the statement under Section 164 of Cr.P.C., it has been said that none other than accused applicant committed rape with prosecutrix in the jungle whereas at that time there was two persons other than accused applicant and it was only accused applicant who committed rape with her. Prosecutrix in medical age determination has been held to be of 16 years. This all accusation is a false accusation. Hence, bail has been prayed for.
Learned private counsel for the informant has argued that his vakalatnama was filed, even then his name was not in the cause list and he could not file counter affidavit for this, time is being claimed. Whereas learned AGA has filed counter affidavit. As on previous date too, learned counsel for the informant was aware and counter affidavit would have been filed but no such counter affidavit has been filed nor any vakalatnama is from office nor his name is there to show that he is counsel for the informant. Whereas learned AGA has vehemently opposed the bail application with the contention that accused applicant is the main accused of offence of rape. Hence, bail be rejected.
First Information Report reveals that occurrence was of 5.5.2018 at no specific time in chik FIR but contents of FIR, it was written to be of evening, when proseuctrix along with her younger sister was on her way. Prosecutrix was enticed and taken by those named three accused persons, which was apprised by younger brother. But this report was not filed till filing of this report on 12.5.2018. Prosecutrix in her statement recorded under Section 161 and 164 of Cr.P.C. has said that firstly two persons committed rape with her, one was accused applicant and the other one was unknown. Then under Section 164 of Cr.P.C. she said that it was only accused applicant who committed rape with her and rest two went from spot, did nothing i.e. there is variance in statement at different stages. Husband of informant is in jail since long and it was argued that owing to murder of son of accused applicant, he is in jail. Under all above facts and circumstances, the nature of accusations, severity of the punishment in the case of conviction and without expressing any opinion on the merits of the case, this court is of the view that the applicant may be enlarged on bail with certain conditions.
Accordingly, the bail application is allowed.
Let the applicant, Avnish Gupta @ Banti Gupta @ Minti Gupta, involved in above mentioned case crime number be released on bail on his executing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
1. The applicant will not tamper with the evidence.
2. The applicant will not indulge in any criminal activity.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned.
In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail.
Order Date :- 29.4.2019 Kamarjahan