Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31556 of 2021 Applicant :- Deepak Kori Opposite Party :- State of U.P.
Counsel for Applicant :- Virpratap Singh,Rajat Agarwal Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Vir Pratap Singh, learned counsel for the applicant and Sri Pankaj Mishra, learned A.G.A. for the State and perused the material on record.
Notice was issued to the first informant vide order dated 31.8.2021. As per office report dated 1.10.2021 a report of C.J.M., Hamirpur has been received and a perusal of the same which is dated 22.9.2021 it is apparent that notice has been served on the first informant through legal heir.
No one appears on behalf of the first informant even when the matter has been taken up in the revised list. Service of notice upon the first informant is sufficient.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Deepak Kori, seeking enlargement on bail during trial in connection with Case Crime No. 04 of 2021, under Section(s) 363, 366, 376, 120B I.P.C. and Sections 04, 17 POCSO Act, registered at P.S. Kurara, District Hamirpur.
The prosecution case as per the F.I.R. lodged on 7.1.2021 at about 20:20 hours by Ramadhar the father of the prosecutrix against Deepak Kori the present applicant, Lekhram, Santosh and Dankoo, is that his daughter has been enticed away by the applicant Deepak Kori. Around 4 months prior to it he had given a mobile phone to his daughter on which they used to talk and after discovering the same, the mobile phone was broken by him and his father and other family members were informed about it who stated that now he will not repeat the same. He has suspicion that Santosh and his father Lekhram are instrumental in the said enticement. His daughter used to live alone in the tube well where the applicant Deepak Kori used to come.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that on the next date of lodging of the F.I.R. the prosecutrix was recovered while she was roaming about all alone. It is argued that the prosecutrix in her statement under Section 161 Cr.P.C. has stated about the applicant giving her a mobile phone on which she used to talk to him and even mobile phone was broken by her father after discovering the said fact. She stated that the applicant called her and committed rape upon her due to which she became pregnant and then he told her to elope with him and got tickets of Gujrat done and while they were in the process of eloping, were apprehended. It is argued that the prosecutrix in her statement under Section 164 Cr.P.C. has stated her age to be about 19 years and has stated that she was having love affair with the applicant and she told her mother to get her married with him but she refused and as such she went with the applicant and on the way they were apprehended. It is argued that the applicant did not allure her and did not establish any physical relationship with her and even did not touch as has been stated by her in her statement under Section 164 Cr.P.C. Subsequently her second statement under Section 161 Cr.P.c. was recorded wherein she states different version. It is argued that the prosecutrix is a major and is a consenting party to the same. It is further argued that the medical evidence does not corroborate the prosecution story of rape being committed on her and even her being pregnant.
It is argued that the prosecutrix is a major girl. There is a document produced by the first informant before the Investigating Officer in which her age reflects as being 16 years and by giving variations of two years, she would be major. It is argued that the prosecutrix had eloped with the applicant and it is a case of elopement. It is argued that the applicant has no other criminal antecedents as stated in para-21 of the affidavit and is in jail since 10.1.2021.
Per contra, learned State counsel opposed the prayer for bail and argued that the applicant is named in the F.I.R., in the statements under Sections 161 and 164 Cr.P.C. of the prosecutrix and there is an allegation of his establishing physical relationship with the prosecutrix in the statement under Section 161 Cr.P.C. It is argued that as such the applicant is involved in the present case.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix was in some relationship with the applicant. She and the applicant had decided to marry which was being refused by her parents. She in her statement under Section 164 Cr.P.c. stated that the applicant did not establish any physical relationship with her and in her statements under Sections 161 and 164 Cr.P.C. she stated that she went with the applicant out of her own sweet will. The matter appears to be a case of elopement.
Looking to the facts and circumstances of this case, the nature of evidence 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- Deepak Kori, 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.
(Samit Gopal,J.) Order Date :- 7.10.2021 Naresh