The case is called out.
Learned counsel for the bail-applicant Sri Ramendra Singh, Advocate, learned A.G.A. for the State Ms. Nikita Mishra, Advocate and learned counsel Sri Arvind Kumar Singh, Advocate on behalf of learned counsel for the complainant Sri Ambuj Kumar Singh, Advocate are present in the Court. Sri Arvind Kumar Singh, Advocate is present on the instructions of Sri Ambuj Kumar Singh, Advocate to argue the case.
The present bail-application is moved on behalf of accused-applicant-Chhotkan @ Chhotkanne, who is involved in Case Crime No.397/2019, under Sections 366, 376-D, 342, 506 of I.P.C., registered at Police Station Ramkot, District Sitapur.
The occasion of present bail-application has arisen on rejection of bail-plea of the accused-applicant by learned Sessions Judge, Sitapur vide order dated 27.11.2019.
Counter affidavit and rejoinder affidavit have already been exchanged between the parties appearing in the case.
The first information report is specifically named against one Shankar, who is neighbour of complainant-father. Allegedly on 26.08.2019, the daughter (victim) of the complainant at about 03:00 A.M. in night, left the house with the help of aforesaid Shankar and eloped with some unknown person. The first information report is lodged instantly in the next morning and on 27.08.2019, the girl herself informed the family members that she is with her friend (a girl) in village Bandia, as the reason comes out in her statement under Section 161 Cr.P.C. that on the preceding day, on the complaint of some person, her father scolded and beaten her, annoyed therefrom, she left the house and took shelter in the home of her aforesaid friend in the village Bandia and on the assurance of family members of the friend, that her father will not scold and beat her again, she came back in her house. An application, subsequent to the first information report, on 27.08.2019 was again given in the concerned police station to that effect. Since then, the name of present accused-applicant is not given to the Investigating Officer under any of the statement or steps of the investigation before 12.09.2019. When the victim was presented before the Magistrate for recording statement under Section 164 Cr.P.C., for the first time, the present accused-applicant alongwith one Ram Jeevan was named, who took her away forcibly from her house on date of incident i.e. 26.08.2019 and thereafter, confining her in a room, they committed rape and thereafter left her free.
Learned counsel submitted that the present statement is in contradiction and without any reason, irrespective of earlier statement and first information report, the victim herself has not taken name when she came back to her parents on 27.08.2019 and to the Investigating Officer in her statement of the same date. Learned counsel further submitted that there is no corroborative evidence, giving support to the statement under Section 164 Cr.P.C., as medical examination report is not suggestive of any forcible sexual assault or rape upon her.
Learned counsel further submitted that the radiological age of the girl is 18 years, as opined by the doctor after examination. The possibility of victim's elopement on her own cannot prima facie be over ruled. Learned counsel further submitted that the role and involvement of the present accused-applicant is prima facie not established in view of contradiction in first information report, statement under Section 161 Cr.P.C. and the medical examination report. Learned counsel further submitted that there is no criminal antecedents for the present accused-applicant, he is ready and willing to submit himself to the trial and put evidences in his favour efficaciously, in case he is released.
On the other hand, learned counsel for the complainant and learned A.G.A., in protest of the bail-application, submitted that at this stage, the statements under Section 164 Cr.P.C. recorded by the Magistrate before the Court is to be believed for the purpose of assessing the involvement and role of the present accused-applicant. However, learned A.G.A. submitted that investigation is completed and chargesheet has been submitted before the Court.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I, without making any comment as to the merit of the case, the complicity of accused in the offences, his role, have find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Let applicant (Chhotkan @ Chhotkanne) involved in Case Crime No.397/2019, under Sections 366, 376-D, 342, 506 of I.P.C., registered at Police Station Ramkot, District Sitapur be released on bail on his furnishing a personal bond of Rs.50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
Order Date :- 17.2.2021 Saurabh