Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24685 of 2021 Applicant :- Birju @ Deepak Opposite Party :- State of U.P. Counsel for Applicant :- Amit Daga Counsel for Opposite Party :- G.A.,Dhiraj Kumar Pandey
Hon'ble Samit Gopal,J.
Heard Sri Amit Daga, learned counsel for the applicant, Sri Vikas Chauhan, Advocate holding brief of Sri Dhiraj Kumar Pandey, learned counsel for the first informant and Sri S.B. Maurya, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Birju @ Deepak, seeking enlargement on bail during trial in connection with Case Crime No. 509 of 2020, under Section 376 I.P.C. and Section 3/4 POCSO Act, registered at Police Station Nakur, District Saharanpur.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although in the first information report, the age of the victim has not been stated but there are three different ages of the victim as per the prosecution. It is argued that there is a certificate of Principal of a school, Saharanpur, the copy of which is annexed as Annexure-12 to the affidavit in which, the date of birth of the victim has been stated as 05.08.2004 from where the victim is said to have studied from class-I to class-IV and then there is a school leaving certificate, the copy of which is annexed as Annexure-10 to the affidavit in which, the date of birth of the victim is mentioned as 16.09.2005 and further the certificate of the Chief Medical Officer, Saharanpur the copy of which is annexed as Annexure-7 to the affidavit, in which the age of the victim is opined to be 17 years and as such, since there are two different dates of birth mentioned in the school documents, the age opined by the Chief Medical Officer should be considered and should have prevalence upon. It is argued that from the certificate of the Chief Medical Officer, the victim is aged about 17 years and by giving variation of two years, she would be a major. It is argued that in the first information report although the applicant is named as an accused and there is an allegation that he has committed rape upon the victim and even the victim, in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has stated that the applicant has committed rape upon her but the same is a false allegation. It is further argued that in the first information report which has been lodged by the father of the victim, there is an averment that on the shout of the victim, Savita @ Sukhi, Pankaj and Dhumri went to the place of occurrence and pulled out the victim from beneath the applicant while the act of rape was being committed, is a false version just in order to give the case a different colour. Learned counsel has placed before the Court, the statement of Smt. Savita, the the copy of which is annexed as Annexure-14 to the affidavit and while placing the same has argued that she went to the house of the applicant which is the alleged place of occurrence on hearing the shouts of her grand daughter wherein, she found the victim present there who told her that the applicant has committed rape on her on which she then called Pankaj and Saurabh after leaving the victim there in the house itself. It is argued that the said version in the first information report that Savita, Pankaj and Dhumri are the eye-witnesses and had pulled the victim while she was being raped, is a false averment. It is further argued that medical examination of the victim also does not support the prosecution case as the doctor has opined that no definite opinion can be given about recent sexual assault. It is argued that as such, the allegation of rape is also not corroborated by medical evidence. The applicant has been falsely implicated in the present case, the victim is an adult and the present case, is a case of consent in which the applicant and the victim were in friendly relationship as they were residents of the same mohalla.
It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 30 of the affidavit and he is in jail since 19.11.2020 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial.
Learned A.G.A. and learned counsel for the first informant have opposed the prayer for bail and argued that there are allegations of rape against the applicant.
After having heard the learned counsel for the parties and perusing the record, it is apparent that there are three different documents pertaining to the age of the victim. There are two documents of the school giving different dates of birth and the the certificate of the Chief Medical Officer states her to be 17 years and by giving variance of two years, she would be a major. There is no medical corroboration of rape being committed on the victim.
Looking to the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Birju @ Deepak, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 29.7.2021 AS Rathore (Samit Gopal,J.)