Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13528 of 2021 Applicant :- Rakesh Kumar @ Barfi Lal Opposite Party :- State of U.P.
Counsel for Applicant :- Vivek Yadav,Ramesh Chandra Yadav,Saurabh Singh,Suresh Kumar Maurya Counsel for Opposite Party :- G.A.,Mohammad Hisham Qadeer,Mohammed Iftekhar
Hon'ble Sanjay Kumar Singh,J.
1- Heard learned counsel for the applicant, learned Additional Government Advocate representing the State, learned counsel appearing on behalf of informant and perused the record of the case.
2- The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 495 of 2020, under Sections 147, 323, 325, 504, 506, 354, 376 I.P.C.
and 3/4 of Protection of Children from Sexual Office Act, 2012 (POCSO Act), Police Station-Mau Aima, District-Prayagraj, during the pendency of trial.
3- As per the prosecution case in brief, informant, who is father of the victim, has lodged F.I.R. on 16.07.2020 at 16:48 O'clock regarding an incident, which took place on the same day i.e. 16.07.2020 between 8:0 to 9:0 O'clock against the applicant and 12 unknown persons for the alleged offence under Sections 147, 323, 504, 506 and 354 I.P.C. alleging inter alia that on the day of incident applicant, who is his neighbour came to his house and started teasing his daughter (victim). On raising alarm by her, family members reached there, then he fled away from the spot giving threat and after some time, he along with twelve boys again came there and beaten Vivek Maurya, Sandeep Kumar and Ashok Kumar, who received injuries. On hue and cry some villagers rushed there and caught six boys on the spot, whereas remaining boys ran away.
4- It is argued by learned counsel for the applicant that as per the prosecution case the F.I.R. was lodged on 16.07.2020 and the statement of complainant was recorded on the next day, i.e. on 17.07.2020, in which he has reiterated the F.I.R. version and did not made allegation of rape against the applicant. Thereafter on 27.07 2020, the statement of injured persons namely Ashok Kumar and Sandeep Kumar, who are cousins of the victim and Vivek Maurya who is real brother of the victim were recorded after 10 days, in which also they have not made allegation of rape on the victim against the applicant. It is next submitted that the statement under Section 161 Cr.P.C. of the victim was also recorded after 14 days on 30.07.2020 and her statement under Section 164 Cr.P.C. was recorded after two and half month on 01.10.2020, in which first time she has made improvement in the prosecution case making allegation of rape against the applicant and also stated that applicant told her that he has made her video and on the that pretext started forcing her to go with her extending threat. It is also pointed out that after a delay of 15 days i.e. on 31.07.2020, when victim was produced for her medical examination, she has stated before the Doctor that in the month of May 2020 applicant had committed wrong with her thereafter several time he made sexual relation with her. Much emphasis has been given by contending that no such video has been collected by the investigating officer during the investigation. The allegation levelled against the applicant is also not corroborated by the medical evidence. The prosecution has come with different version on each steps regarding the allegation of sexual assault. It is next submitted that the applicant is neighbour of the victim. He possesses educational qualification of B.Com. and I.T.I. and was working as agent in Sonata Company, in district Sultanpur. The applicant is languishing in jail since 20.10.2020 having no criminal history to his credit and has been falsely implicated in this case due to personal ill-will. Lastly, it is submitted that charge sheet has been submitted on 04.11.2020 and the Court has taken cognizance on 09.11.2020. There is no chance of tempering the prosecution witnesses. 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.
5- Per contra, learned A.G.A. as well as learned counsel appearing on behalf of the informant opposed the prayer for bail of the applicant by contending that though as per the ossification test report of the victim, she is between 16 to 18 years of age, but as per certificate dated 26.10.2020 given by the Principal, Devmurat Singh Girls Inter College, victim is minor and she in her statements has levelled the allegation of rape against the applicant, therefore, applicant is not entitled to be released on bail.
6- Having heard learned counsel for the parties, I find that in the F.I.R. dated 16.07.2020 as well as in the statements of the father and brothers of the victim, no allegation of rape has been levelled against the applicant. The statements of the victim was recorded after much delay on 31.07.2020 and 01.10.2020 regarding an incident dated 16.07.2020, in which first time victim has made improvement in the prosecution making additional allegation of rape against the applicant. Learned counsel appearing for the opposite parties do not dispute these facts. Though in the offences of sexual harassment/rape, statement of the victim is a primary consideration if her testimony is otherwise worthy of credence, but at the same time it is also true that under the law there is no presumption that in all cases, the victim will always narrate the story truthfully. Each case turns on it's own merit and even one additional or more facts may alter the words of conclusion between two cases. Considering the overall facts and circumstances of the case at this stage, possibility of making exaggerated allegation against the applicant at the belated stage cannot be ruled out. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, without expressing any opinion on the merit of the case, I am of the view that the applicant has made out a case for bail. Hence, the bail application is hereby allowed.
7- Let the applicant Rakesh Kumar @ Barfi Lal 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.
8- 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.
9- However, the trial court is directed to make an endeavour to conclude the trial expeditiously in accordance with law, without granting any unnecessary adjournment to either of the parties.
Order Date :- 27.9.2021 Sunil Kr. Gupta