Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23346 of 2019 Applicant :- Nikki Opposite Party :- State Of U.P.
Counsel for Applicant :- Shyam Shankar Shukla,Vinod Kumar Singh Parmar Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Shyam Shankar Shukla, learned counsel for the applicant and Mohd. Shoaib Khan, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant-Nikki with a prayer to enlarge him on bail in Case Crime No. 589 of 2018, under Sections 363, 366, 376, 506 I.P.C. and 3/4 POCSO Act, Police Station-Sikandrarao, District-Hathras, during the pendency of the trial.
It has been argued by learned counsel for the applicant that as per the allegations made in the first information report lodged on 4th September, 2018 by Shanker i.e. father of the victim, namely, Neelam against the applicant and Arun, on 1st September, 2018 at 06:00 p.m. (morning) the victim had gone to Dr. Swamy to take medicine, when she did not return to her house, a missing report was lodged on 2nd September, 2018, after which the informant came to know that the applicant had persuaded the victim to go along with him with the help of the co-accused Arun. In the statement recorded under Section 161 Cr.P.C. on 1st October, 2018, the victim has introduced the name of father of the applicant, namely, Ajay by stating that on 1st September, 2018 when she was going to take medicine, the named accused Arun and Ajay met her on the way and on the pretext of providing of medicine to her, they took her to Delhi by a vehicle, where they kept her in a closed room and they tried to rape her and in that room, the applicant met her and he has sexually assaulted her, thereafter the named accused Arun and Ajay took her to Police Station, Delhi where the father of the victim came and took her to her house. In the statement recorded under Section 164 Cr.P.C. on 8th October, 2018 i.e. after seven days from the date of statement recorded under Section 161 Cr.P.C., the victim has developed a new story by stating that when she was going to take medicine on the way both the named accused and Ajay met her, on the pretext of providing medicine to her, they had forcefully taken her in a vehicle and closed the glasses of the said vehicle. They took her in a room and they went after locking the door of the said room from outside. At evening they sexually assaulted her. When she screamed and shouted, they threatened to kill her. Arun and the applicant used to come to her in drunken condition at night. One day she informed the Police through 100 Number Dial from the phone of Arun. Before reaching of the Police they left her to the Police Station from where she was taken by her parents. Before the Doctor, who conducted the medical examination of the victim, she has reiterated the same version as stated in her statement recorded under Section 161 Cr.P.C. It has further been argued by the learned counsel for the applicant that there are contradictions in both the statements, which makes the prosecution case doubtful. The real fact is that the applicant was in love with the victim. She went along with the applicant and travelled for hundreds of kilometres with the applicant. As per the medical examination report, the victim is 19 years old. It is impossible to believe that a grown up major girl can be taken in most crowded places against her will for such a long distance. There is no evidence that she ever protested or resisted the act of the applicant or made any complaint all this while. The victim was forced to give some incriminating statements against the applicant under coercive pressures. Overall circumstances of the case are strongly suggestive of consensual relationship between the two. As per the medical examination report enclosed at page-74 of the paper book, there is no external or private parts of the body of the victim. The medical examination report does not support the prosecution case. The allegation of sexual assault being committed upon her by all the aforesaid three including the father of the applicant, namely, Ajay made in the statement recorded under Section 164 Cr.P.C., is highly improbable. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 21st November, 2018.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229- A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
(Manju Rani Chauhan, J.) Order Date :- 4.6.2019 Sushil/-