Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24752 of 2021 Applicant :- Gautam Sagar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amar Bahadur Maurya,Sushil Kumar Kushwaha Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Amar Bahadur Maurya, learned counsel for the applicant and Sri Anand Sagar Dubey, 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- Gautam Sagar, seeking enlargement on bail during trial in connection with Case Crime No.335 of 2020, under Sections 363, 376 I.P.C. and 6 POCSO Act, registered at Police Station Aonla District Bareilly.
The prosecution case as per FIR lodged on 13.08.2020 under Section 363, 366 IPC by Rajiv Kumar naming the applicant, Smt. Shobha and Raju as the accused is that on 12.08.2020 at about 2 a.m. his minor daughter aged about 14 years went missing from the house. Vishal, the younger son of the first informant told him that he saw his sister talking to Gautam at the door from where he took his sister with him. The applicant Gautam Sagar used to come to his house and was seen talking to his daughter many times. Smt. Shobha and her husband Raju used to call her to their house and used to allure his daughter and after coming to know of it, he had objected to it and since then just to teach him a lesson, they entered in a conspiracy and on the instigation of Smt. Shobha and her husband Raju, the applicant Gautam Sagar enticed his minor daughter. The date of birth of his daughter is 8.10.2006.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that the prosecutrix was examined under Section 161 Cr.P.C. wherein she stated that on the day of incident, the applicant took her to his house where he established physical relationship with her. It is further argued that the medical examination report of the prosecutrix does not support the prosecution case. The doctor did not find any external injury upon the person of the prosecutrix. The prosecutrix in the statement under Section 164 Cr.P.C. stated that she had called the applicant to talk with him as they were known to each other and then he was coming back to drop her to her house wherein the police arrested them. The applicant did not force her for anything and did not commit any wrong act with her. She does not want any case in the matter. Subsequently second statement of the prosecutrix under Section 161 Cr.P.C. was recorded wherein she has reiterated the same as she has stated in her statement under Section 164 Cr.P.C. It is further argued that the victim was habitual to sexual intercourse and the doctor conducting medical examination found her hymen to be torn and she was menstruating. The present case is a case where the applicant has been falsely implicated. It is further argued that as per statement of the prosecutrix recorded under Section 164 Cr.P.C and her second statement recorded under Section 161 Cr.P.C., no wrong act or forcible act has been committed by the applicant and she had gone with the applicant just to talk to him after which she was arrested. It has also been pointed out that the applicant is not having any criminal history as stated in para 20 of the affidavit. The applicant is in jail since 14.08.2020.
Per contra learned counsel for the State opposed the prayer for bail and argued that the prosecutrix is a minor girl. She in her statement recorded under Section 161 Cr.P.C. has stated that the applicant committed rape upon her, as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the prosecutrix in her statement recorded under Section 164 Cr.P.C and in her second statement recorded under Section 161 Cr.P.C., has stated that no wrong act or forcible act has been committed by the applicant. The medical examination report of the prosecutrix does not support the prosecution case.
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-Gautam Sagar, 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 :- 6.10.2021 Gaurav