Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39139 of 2021 Applicant :- Thirthraj Opposite Party :- State of U.P.
Counsel for Applicant :- Garun Pal Singh Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Garun Pal Singh, learned counsel for the applicant, Sri Raj Kumar Gupta, learned Brief Holder 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 Thirthraj, seeking enlargement on bail during trial in connection with Case Crime No. 172 of 2021, under Sections 452, 323, 354, 504, 506, 376 I.P.C. and Section 66(D) I.T. Act, registered at P.S. Raya, District Mathura.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the F.I.R. of the present case was lodged under Sections 452, 323, 354, 504,506 I.P.C. by the prosecutrix herself naming the applicant as the only accused alleging therein that on 5.6.2021 the applicant came inside her house and enraged her modesty. He even tore her clothes. She was beaten. She raised shout on which her husband Dilip and other persons came and rescued her but the applicant left the place by extending threat. She states of getting her medical examination conducted.
Learned counsel for the applicant argued that the allegations in the F.I.R. are false and incorrect. The prosecutrix has reiterated the version of the F.I.R. in her statement under Section 161 Cr.P.C. and has specifically stated that the applicant did not do any wrongful act on her. Even Dilip her husband in his statement under Section 161 Cr.P.C. has stated that no wrongful act was done upon his wife. The first informant/victim was then produced before the doctor but she refused her medical examination. Subsequently in her statement recorded under Section 164 Cr.P.C. the first informant/victim states that around a year back the applicant gave her some intoxicating things and committed rape upon her. He then captured her objectionable photographs. He used to threaten her of sending them on whatsapp. On the day of incident he came to the house and tried to establish physical relationship which was refused and then he assaulted her. Her husband and neighbours came there on her shout, after which he ran away. It is argued that subsequently in the present matter Sections 376 I.P.C. and 66 (D) I.T. Act were added. It is argued that then the police recorded second statement of the first informant under Section 161 Cr.P.C. wherein she states that the photographs are with her which was given to the police.
Learned counsel has argued that although the police during investigation has taken out some photograph of the applicant and the first informant but the same were taken from the mobile of one Manoj, who has been interrogated as a witness. It is argued that there is no recovery of any photograph which is objectionable from the possession of the applicant. Learned counsel has argued that the prosecutrix is a major woman and is a married lady. The allegation of rape is coming in her statement under Section 164 Cr.P.C. for the first time which is stated to have been committed around a year back. It is argued that the same is an afterthought just in order to falsely implicate and harass the applicant. There was no prior complaint whatsoever regarding any act of rape being committed on the first informant. It is argued that the applicant has no other criminal antecedents as stated in para-20 of the affidavit and is in jail since 27.6.2021.
Per contra, learned State counsel opposed the prayer for bail but could not dispute the arguments as aforesaid.
After having heard learned counsels for the parties and perusing the record, it is evident that the allegation of rape has come for the first time in the statement under Section 164 Cr.P.C. of the prosecutrix that too of an act committed around a year back. The same was missing in the F.I.R. and in the statement under Section 161 Cr.P.C. of the first informant/prosecutrix. The alleged photographs have been recovered from the mobile of one Manoj. The prosecutrix is a major married lady.
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- Thirthraj, 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.
(Samit Gopal,J.) Order Date :- 24.12.2021 Naresh