(Order on Criminal Misc. Application No. 2 of 2021) This application has been moved with the prayer to add Section 420 I.P.C. and 3/4 POCSO Act in the prayer of bail application apart from other sections mentioned in the bail application.
It is submitted by learned counsel for the applicant that during pendency of this bail application, Sections 420 I.P.C. and 3/4 POCSO Act have been added by the investigating officer, therefore, need arose to file the instant application.
Learned A.G.A. as well as learned counsel appearing on behalf of informant do not oppose the prayer made in the application.
Accordingly, the instant application dated 14.07.2021 is allowed.
(Order on Bail Application) Heard Mr. V.P. Srivastava, learned Senior Advocate assisted by Mr. Rajesh Kumar Srivastava, learned counsel for the applicant; learned Additional Government Advocate representing the State; Mr. Sanjay Pathak, learned counsel appearing on behalf of informant and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 45 of 2021, under Sections 363, 366, 376, 420 I.P.C. and 3/4 POCSO Act, Police Station-Kotwali City, District-Aligarh, during the pendency of trial.
As per the prosecution case in brief, victim herself lodged an F.I.R. on 20.03.2021 regarding an incident which is alleged to have taken place between 29.09.2019 to 17.03.2021 against Hemant Thakur (applicant), Yatan Singh (father of applicant) and Ulfat Singh (grandfather of applicant) alleging inter alia that she and applicant Hemant Thakur studied together in same college. The applicant was known to her since last one and half years and thereafter they started loving to each other and there was telephonic conversations as well as long WhatsApp chatting also between them. F.I.R. further alleges that on 27.09.2019 she was enticed away by the applicant and he took her to the house of his maternal grandmother and gave some toxicated substance, whereby she became unconscious and he committed rape on her and also made her obscene video. On regaining her consciousness, when she asked the applicant why he committed rape without her consent and made her video, then he and his maternal grandmother assured the victim for her marriage, but after sometime he refused to marriage and again made physical relation with her in a hotel on the threat that he will make her video viral. It is further alleged that even after refusal of marriage, he made a physical relation with her on 03.01.2021 and when she became pregnant, the applicant started maintaining distance from her and on making complaint to his family members, she was assured by the family members of the applicant that after abortion they will get the victim married to applicant and believing that words true she got her foetus aborted, but thereafter applicant and his family members refused to marriage.
It is argued by learned counsel that in this case statements under Section 161 and 164 Cr.P.C. of the victim was recorded, in which she has disclosed that first time she came in the contact of applicant in October 2019, whereas in the F.I.R. she has made allegation of committing rape on her on 27.09.2019, as such, the date of alleged incident is doubtful as per the prosecution case and the statements of victim itself. It is next submitted that it is also the case of victim that the she was pregnant and got her foetus aborted, but neither date of abortion has been disclosed by the victim nor there is any medical examination of the victim because victim herself refused for her medical examination. It is further submitted that father and mother of victim in their statement have clearly stated that they have not aware about lodging of F.I.R. by the victim against the applicant and they have also stated that there was love affair between the applicant and the victim, therefore, applicant has made physical relation with victim in a hotel on the pretext of marriage. It is pointed out that in the statement of father and mother of the victim, there is no whisper about alleged rape having been committed on 27.09.2019 in the house of maternal grandmother of the applicant. It is also submitted that the investigating officer proposed to file charge sheet under Section 376, 504 and 506 I.P.C. and forwarded its report to superior officer, but in the meantime on the complaint of the victim, Circle Officer directed the investigating officer to investigate the fact, as alleged in the complaint of the victim. Thereafter her second statement was recorded and on the said basis, Section 420 I.P.C. and Section 3/4 POCSO Act have also been added in this case. Much emphasis have been given that victim was consenting party with the applicant and there is no corroborative material on record in support of the allegation levelled by the victim against the applicant. There are material contradictions in the prosecution case, which create doubt upon the prosecution story. Applicant has no criminal history and he is languishing in jail since 27.03.2021. Lastly, it is submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned A.G.A. as well as learned counsel appearing on behalf of informant have opposed the prayer for bail of the applicant by contending that as per high school certificate, the date of birth of victim is 23.12.2002. She was sexually abused by the applicant on the pretext of marriage, but later on he refused to marry her, but they do not dispute the aforesaid factual aspects of the matter as argued on behalf of applicant as well as the fact that victim herself refused for her medical examination.
After having heard learned counsel for the parties and perusing the record, I find that there are contradictions in the date of first meeting of the victim with the applicant and date of first incident as mentioned in F.I.R. as well as statements of the victim. I also find that there is no medical examination report of the victim, therefore, there is no material on record to presume that victim was in fact pregnant and was actually got her foetus aborted. Charge sheet has been submitted in this case and there is no such video on record, as alleged by the victim. It is also admitted fact from the side of victim that there was love affair of the applicant and victim. Therefore, considering the case in totality, possibility of false implication of the applicant cannot be ruled out. Considering the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Hemant Thakur 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 shall not temper with the evidence during trial.
(ii) The applicant shall not pressurize/intimidate the prosecution witness.
(iii) The applicant shall appear before the trial Court on the date fixed.
(iv) In case of misuse of any condition during trial, the concerned Court below shall be at liberty to cancel the bail.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 18.8.2021 Sunil Kr. Gupta