Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23170 of 2019 Applicant :- Kamal Opposite Party :- State Of U.P.
Counsel for Applicant :- Imran Mabood Khan Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Heard learned counsel for the applicant and learned A.G.A. Perused the record.
Submission of the counsel is that incident is said to have taken place on 11-9-2018 while the F.I.R. was lodged on 12-9-2018. The statement of the victim was recorded by the Investigating Officer on 12-9-2018 itself. The age of the victim is nearly 18 years. Reliance in this regard has been placed on school leaving certificate of the victim annexed as Annexure No.6 to the application. The victim was medically examined on 22-9-2018 after about 10 days of the incident. Submission is that in fact, that girl is actually much more than the alleged age and had already attained the age of majority. Further submission is that she was in fact carrying a love affair with the co-accused Shakib. Attention was drawn to the statement of witness Aman recorded by the Investigating Officer on 18-9-2018 which is Annexure No.8 to this application. Attention was also drawn to Annexure number-7 to the statement of accused Shavez. Counsel has also tried to show from these statements that relationship of co-accused with the alleged victim was a known fact in the village and as the same got exposed and she was taken to task by her own parents then out of rancour and vengeance implication of applicant has been made who was the driver of tractor belonging to the father of co-accused. Emphasis was laid by the counsel on the fact that when the F.I.R. was made by the victim herself no allegation of rape was made against the applicant or even against co-accused and when the victim was examined by the Investigating Officer even at that stage she did not made any allegation of rape against the either of them. Submission is that the allegation to the same effect is clearly an improvisation and exaggeration and has been done in order to lend colour to the prosecution case. Submission is that at any rate, with the background of affair of the alleged victim with co-accused, and the applicant being just a driver of tractor of father of co-accused and the omission of allegation of rape at earlier stages makes out at least a prima facie case for bail in favour of applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 07.04.2019 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Learned A.G.A. has opposed the prayer for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial 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- Kamal, involved in Case Crime No.641 of 2018, u/s 376D, 342, 323 I.P.C. and section 3/4 POCSO Act, P.S.- Shahbad, District- Rampur, be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 3.6.2019 shiv