Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34861 of 2020 Applicant :- Harendra Opposite Party :- State of U.P.
Counsel for Applicant :- Pankaj Bharti Counsel for Opposite Party :- G.A.,Chandra Shekhar Kushwaha
Hon'ble Samit Gopal,J.
Heard Sri Pankaj Bharti, learned counsel for the applicant, Sri Chandra Shekhar Kushwaha, learned counsel for the first informant, Sri Sanjay Singh, learned AGA 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 Harendra, seeking enlargement on bail during trial in connection with Case Crime No. 102 of 2020, under Section(s) 366, 376, 506 I.P.C. registered at P.S. Ratanpuri, District Muzaffar Nagar.
Learned counsel for the applicant argued that the present F.I.R. has been lodged on the basis of an application moved under Section 156(3) Cr.P.C. It is argued that although the F.I.R. has been registered against three named accused persons including the applicant namely Harendra, Jogendra and Kumari Sarita and one unknown person but during investigation the Investigating Officer has exonerated Jogendra and Kumari Sarita which itself goes to show the falsity of the prosecution case. It is argued that in the F.I.R. although the age of the victim has been stated to be 17 years but as per her School Leaving Certificate, copy of which is annexure no. 5 to the affidavit, her date of birth mentioned therein is 15.8.2000 and as such she is aged about 19 years and 10 months.
It is argued that initially the first informant gave an application to the police regarding missing of his daughter but on the next date when she came back he gave an application that his daughter has come back and he does not want any action in the matter. But later on after about a week he moved an application under Section 156(3) Cr.P.C. which is an afterthought just in order to falsely implicate and harass the applicant. It is argued that the victim girl is a major and allegation of rape has not got any corroboration from the medical evidence. It is further argued that specific case of the prosecution as per the F.I.R. and the statements recorded under Sections 161 and 164 Cr.P.C. of the victim is that two accused persons namely Harendra the applicant and the co-accused Jogendra had bitten on her body at various places and she has received injuries by the same, but the doctor in the medical examination has in very specific terms mentioned that there is no sign of external injury on the external part of body of the victim seen from naked eye.
It is argued that the victim was having love affair with the applicant and she left her house out of her own sweet will. The applicant has been falsely implicated by the first informant just for the purpose of blackmailing. Para-15 of the affidavit has been placed before the Court to buttress the said argument. It is argued that the applicant has no other criminal antecedents as stated in para-19 of the affidavit and is in jail since 28.7.2020.
Per contra, learned AGA and learned counsel for the first informant vehemently opposed the prayer for bail and argued that in so far as the medical examination of the victim is concerned, the incident in question is dated 10.6.2020 whereas the medical examination was conducted on 18.7.2020 and as such the doctor finding any injury on the body of the victim is impossible. It is argued that there is a specific version of the prosecution that the applicant and the co-accused Jogendra committed rape upon the victim. It is further argued that the applicant is named in the F.I.R. and he is involved in the matter.
After having heard learned counsels for the parties and perusing the record, it is apparent that the F.I.R. of the present case is registered on the basis of an application moved under Section 156(3) Cr.P.C. There is a specific allegation of rape upon the applicant and the co-accused Jogendra to have been committed upon the victim, but the police has exonerated the co-accused Jogendra and Kumari Sarita after investigation and has submitted charge sheet only against the applicant. The victim is a major girl aged about 19 years and 10 months. The medical examination does not give any opinion regarding rape being committed upon the victim.
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- Harendra, 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 :- 13.8.2021 Naresh (Samit Gopal,J.)