Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31480 of 2021 Applicant :- Shivam Gaur Opposite Party :- State of U.P.
Counsel for Applicant :- Akhilesh Singh,Shivam Yadav Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Shivam Yadav, learned counsel for the applicant, Sri Raj Kumar Gupta, learned brief holder for the State and perused the material on record.
Notice was issued to the opposite party no. 2 vide order dated 31.8.2021. As per office report dated 1.10.2021 a report of C.J.M., Gorakhpur has been received and a perusal of the same which is dated 20.9.2021 it is apparent that notice has been served personally on the opposite party no. 2.
No one appears on behalf of the opposite party no. 2 even when the matter has been taken up in the revised list. Service of notice upon the opposite party no. 2 is sufficient.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Shivam Gaur, seeking enlargement on bail during trial in connection with Case Crime No. 62 of 2021, under Section 376 I.P.C. and Section 3/4 POCSO Act, registered at P.S. Sikariganj, District- Gorakhpur.
The prosecution case as per the F.I.R. lodged on 14.5.2021 at about 20:23 hours by Subhash Sahni the father of the prosecutrix, against the applicant, is that his daughter aged about 16 years used to talk to Shivam on phone. On 13.5.2021 all the family members went to sleep after having dinner after which the applicant called his daughter on phone and asked her to meet him near a canal in the village otherwise he would consume poison, on which his daughter got frightened and went to meet him in the dark hours of midnight. The applicant finding her alone committed rape on her and ran away. His daughter came back crying and told the story after which an information was given to the police on dial 112 number, on which the police came there but Shivam could not be traced.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecutrix was subjected to medical examination and the medical examination does not in any manner corroborate the factum of rape being committed upon her. It is argued that the Chief Medical Officer, Gorakhpur has opined the age of the prosecutrix to be about 18 years. It is further argued that in the statement under Section 161 Cr.P.C. the prosecutrix states that she is knowing the applicant for the last one year. The applicant called her in the night on the day of incident after which she went to meet him, then the applicant on a false pretext of marriage established physical relationship with her and then ran away, after which she informed her family members. It is argued that subsequently in her statement recorded under Section 164 Cr.P.C. the prosecutrix has stated that she knows the applicant since last two months as they are of the same village and they used to talk to each other on phone, the applicant called her on phone on the day of incident stating that if she would not come, he would die after consuming poison and when she went there the applicant raped her, she started crying and then the applicant ran away.
Learned counsel for the applicant has argued that the entire version as stated by the prosecutrix regarding the factum of rape being committed upon her, is false and concocted and the same was given under the pressure of her family members. It is argued that the prosecutrix is habitual of sexual act as the doctor conducting her medical examination has found her hymen to be torn, old healed. It is argued that the present case is a case of consent and the prosecutrix went in the midnight to meet the applicant near the canal of the village where they were caught by the family members and then the present F.I.R. was lodged. It is argued that the applicant has no other criminal antecedents as stated in para-24 of the affidavit and is in jail since 18.5.2021.
Per contra, learned State counsel opposed the prayer for bail and argued that the applicant is named in the F.I.R., in the statements under Sections 161 and 164 Cr.P.C. and there is an allegation of rape being committed upon her by the applicant. It is argued that thus the applicant is involved in the present matter.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix went on the call of the applicant in the midnight to meet him. The allegation of rape does not find corroboration from the medical examination. She has stated her age to be about 18 years in the statement under Section 161 Cr.P.C. and as per the certificate of Chief Medical Officer, Gorakhpur she is also opined to be 18 years of age. She in her statement recorded under Section 161 Cr.P.C. states that the applicant established physical relationship with her on a false promise of marriage.
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- Shivam Gaur, 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.
(Samit Gopal,J.) Order Date :- 7.10.2021 Naresh