Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26454 of 2021 Applicant :- Golu Kumar Balmiki Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Priya Singh,Ajay Kumar Srivastava Counsel for Opposite Party :- G.A.,Bijai Prakash Tiwari
Hon'ble Samit Gopal,J.
Heard Sri Anand Priya Singh, learned counsel for the applicant, Sri Bijai Prakash Tiwari, learned counsel for the first informant 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 Golu Kumar Balmiki, seeking enlargement on bail during trial in connection with Case Crime No. 736 of 2020, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, registered at Police Station Govind Nagar, District Kanpur Nagar.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the First Information Report was registered under Sections 363, 366 IPC by Charan Singh the father of the prosecutrix stating therein that in the night on 30/31.10.2020 the family after having their dinner went to sleep. In the morning, when they woke up, they found their daughter aged about 14 years missing from the house. It is suspected that the applicant who is their neighbour has enticed away his daughter. It is argued that subsequently on 01.11.2020 the prosecutrix came back to her house and her statement under Section 161 Cr.P.C. was recorded wherein although she states her age to be 14 years but states that she came out of the house at about 04:00 am on 31.10.2020 on being called by the applicant who met at a crossing after which the applicant told her to accompany him and she went with him then stated that he would marry her and took her to the house of his maternal uncle wherein she refused the marriage with her and then the applicant committed some wrongful act with her after which she was dropped back on 01.11.2020 near her house. It is argued that the doctor who conducted the medical examination of the prosecutrix did not find any external or internal injury on her body and as such the factum of rape does not get corroborated from the medical examination.
It is further argued that in the statement under Section 164 Cr.P.C., the prosecutrix has even therein stated her age to be 14 years and has stated that she used to talk to the applicant who asked her to marry her which she refused. On 30.10.2020 he called her outside the house and then forcibly made her to sit in a vehicle wherein Kanhaiya and Omee were there and she was taken to the house of the buva of the applicant where wrongful act was done. She was then given something to eat which contained some substance after which she became unconscious and then the applicant showed her video and threatened her making the same viral. It is argued that as such no video has been recovered by the Investigating Officer during investigation and the said allegation is false.
It is further argued that the Chief Medical Officer, Kanpur has opined the age of the victim to be about 17 years as per his certificate dated 12.11.2020. It is argued that as such by giving benefit of variation in age, she is a major. The victim went out of her own house in the night on the call of the applicant and met him at the decided place where the applicant took her to the house of his relatives. There was no resistance whatsoever by the victim at that period of time. He further argued that the applicant has no criminal history as stated in para 18 of the affidavit and is in jail since 16.11.2020.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the victim girl is a minor girl aged about 14 years as per the First Information Report, her statements under Section 161 Cr.P.C. and 164 Cr.P.C. It is argued that the victim is uneducated and as such there is no school records to show her age and date of birth. It is argued that since age of the prosecutrix has been mentioned by her father itself in the First Information Report to be 14 years as such she is a minor. It is further argued that there is an allegation in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix of the applicant doing some illegal act with her and as such the prayer for bail of the applicant be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the age of the victim is opined by the C.M.O., Kanpur to be of 17 years of age and by giving benefit of two years, she would be a major. She went out of her house in the night on the call of the applicant and met him. She travelled with the applicant to the house of his relatives without any resistance.
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 Golu Kumar Balmiki, 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 :- 22.9.2021 M. ARIF (Samit Gopal, J.)