Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34173 of 2021 Applicant :- Krishna Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Sunil Vashisth Counsel for Opposite Party :- G.A.,Rameshwar Prasad Mishra
Hon'ble Samit Gopal,J.
Heard Sri Sunil Vashisth, learned counsel for the applicant, Sri Rameshwar Prasad Mishra, learned counsel for the first informant and Sri Pankaj Mishra, 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 Krishna Kumar, seeking enlargement on bail during trial in connection with Case Crime No. 239 of 2021, under Sections 452, 376, 354, 384, 504, 506 I.P.C., registered at Police Station Modinagar, District Ghaziabad.
The First Information Report has been lodged in the present matter on the basis of an application under Section 156(3) Cr.P.C. on 17.03.2021 moved by the prosecutrix. The allegation therein is that the applicant is neighbour of the prosecutrix. On 23.01.2020 at about 09:00 am when the prosecutrix was alone in the house and was bathing, the applicant came from the roof and extended threats by showing a knife, committed rape upon her and also clicked photographs and made a video of the prosecutrix. He threatened her of showing it to her husband. She got terrified and due to fear of getting disrepute she did not tell anyone. On 03.12.2020 at about 10:00 am when she was alone in the house, the applicant came again and raped her. He used to threaten her and used to tell that he will tell it to her husband. He used to pressurize for establishing physical relationship. He used to call on her mobile phone and talked in immoral manner. When the prosecutrix /first informant got annoyed, she moved an application on 10.12.2020 before the S.S.P, Ghaziabad but no action was taken and as such she moved an application under Section 156(3) Cr.P.C. She states that she is quite disturbed by the act of the applicant. She has two children.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that there is sharp contrast in the version stated by the prosecutrix and in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. from the version given by her in her statement under Section 156(3) Cr.P.C. It is further argued that the prosecutrix was taken to the doctor on 05.04.2021 for medical examination wherein she states that she was taking bath yesterday at about 05:30 pm wherein the applicant entered her house from the roof, caught hold of her, forced on her and even assaulted her. The incident was took around 4-5 minutes. It is further argued that no such video or objectionable photographs have been recovered during investigation. It is argued that the entire prosecution case is falsity and a concoction. There is no substance in the same. The date and time of the incident is being changed by the prosecutrix everywhere. It is further argued that the proseuctrix is a married lady aged about 30 years as stated in her statement under Section 164 Cr.P.C. and has two children which has been stated by her in the First Information Report. It is argued that the application under Section 156(3) Cr.P.C. was moved on 22.02.2021 which is also delayed without any plausible explanation. It is further argued that there is a dispute between the applicant and the husband of the prosecutrix and as such he has falsely implicated in the present case. He further argued that the applicant has no criminal history as stated in para 30 of the affidavit and is in jail since 20.06.2021 Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant committed rape repeated times upon the prosecutrix which has been stated in her statement under Section 156(3) Cr.P.C. It is further argued that the applicant is named in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C.
After having heard learned counsels for the parties and perusing the records, it is evident that the prosecutrix is a married lady aged about 30 years having two children. There are different version in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. and before the doctor. The application under Section 156(3) Cr.P.C. has been filed after delay without any plausible explanation.
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 Krishna Kumar, 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 :- 29.10.2021 M. ARIF (Samit Gopal, J.)