Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43376 of 2021 Applicant :- Dharmendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Krishna Dutt Tiwari Counsel for Opposite Party :- G.A.,Krishna Kant Yadav
Hon'ble Samit Gopal,J.
Heard Sri Krishna Dutt Tiwari, learned counsel for the applicant, Sri Krishan Kant Yadav, learned counsel for the first informant, Sri Akhilesh Kumar Tripathi, learned counsel 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 Dharmendra, seeking enlargement on bail during trial in connection with Case Crime No. 218 of 2021, under Section 376D I.P.C. & 5/6 POCSO Act, registered at P.S.- Behjoi, District- Sambhal.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that First Information Report was lodged under Section 452 & 354 I.P.C. by the prosecutrix herself. The applicant was granted bail vide order dated 24.05.2021 passed by In-charge Chief Judicial Magistrate, Sambhal at Chandausi. In the said case crime number during investigation Section 342 I.P.C. was also added. Subsequently, statement under Section 164 Cr.P.C. of the prosecutrix was recorded wherein she has stated that applicant and co-accused Ram Prakash dragged her in his house and committed rape upon her. It is argued that then the second statement of the prosecutrix under Section 161 Cr.P.C. was recorded in which she has stated that the application for lodging the F.I.R. was written by the lawyer and she did not read it. She gave her statement under Section 164 Cr.P.C. on the direction of the lawyer. It is argued that as such, the applicant has been falsely implicated in the present case. The prosecutrix was produced before the Doctor but she refused her medical examination. It is argued that after recording the statement under Section 164 Cr.P.C., the present case was converted into a case of under Section 376(D) and 5/6 of the POCSO Act and the other sections were deleted from the same. It is argued that prosecution case is not truthful. The case has been changing throughout and is not consistent. It is further argued that applicant has no criminal history as stated in para 13 of the affidavit and he is languishing in jail since 07.08.2021.
Per contra, learned counsel for the first informant as well as learned A.G.A. for the State opposed the prayer for bail and argued that applicant is named in the F.I.R. and then there is an allegation of rape being committed upon the prosecutrix as stated in her statement under Section 164 Cr.P.C.
After having heard learned counsels for the parties and perusing the records, that the allegation of rape is stated for the first time in the statement of the prosecutrix recorded under Section 164 Cr.P.C.. The prosecution case has been changing and is not consistent.
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 Dharmendra, 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 she 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 her 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 her, 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 her in accordance with law and the trial court may proceed against her 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.
Order Date :- 22.12.2021 Sachin/-
(Samit Gopal,J.)