High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7131 of 2022 Applicant :- Pappu Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Pandey Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Ajay Pandey, learned counsel for the applicant, Sri Pankaj Mishra, 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 Pappu, seeking enlargement on bail during trial in connection with Case Crime No. 395 of 2021, under Sections 376, 342, 506 I.P.C. registered at P.S. Sarai Akil, District Kaushambi. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present F.I.R. has been lodged on 28.10.2021 by Bachcha Lal father of the prosecutrix although naming the applicant as only accused, but the same has been lodged after three days' of the alleged incident without any plausible explanation, which is stated to have taken place on 25.10.2021. It is argued that as per the F.I.R. allegation against the applicant is that on 25.10.2021 at about 3.00 A.M. his daughter aged about 19 years, went to attend the call of nature and after 10-15 minutes her shouts were heard, after which he came out of the house and other persons of the locality also came there and on asking, she disclosed that the applicant gagged her mouth, pulled her inside his house and committed rape forcibly and after which he pushed her out of his house. Learned counsel for the applicant argued that as per own showing of the F.I.R., the prosecutrix is aged about 19 years and is major and even as per the age certificate issued by Chief Medical Officer, Kaushambi, dated 02.11.2021, she has been opined to be between 17-18 years in age. It is argued that prosecutrix was produced before the doctor where she refused her medical examination. Further it is argued that the prosecutrix in her statement recorded under Section 161 Cr.P.C., has stated that her father lodged the F.I.R. as he was angry with the applicant and no wrongful act has been done with her. It is argued that subsequently the prosecutrix in her statement recorded under Section 164 Cr.P.C., under pressure of the family, has reiterated the same version as has been given in the F.I.R. and later on, her second statement under Section 161 Cr.P.C. was recorded wherein she again reiterated the same version given by her under Section 164 Cr.P.C. It is argued that the allegations levelled against the applicant are false and concocted and he has been falsely implicated in the present case just in order to harass him. It is argued that the applicant has no other criminal antecedents as stated in para-18 of the affidavit and is in jail since 04.11.2021. 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 F.I.R. has been lodged after three days of the incident for which there is no plausible explanation given from the side of the prosecution. The prosecutrix in the statement recorded under Section 161 Cr.P.C. initially states of false implication of the applicant and also states that no wrongful act upon her has been committed. But subsequently in the statement recorded under Section 164 Cr.P.C. and second statement recorded under Section 161 Cr.P.C., the prosecutrix reiterates the version of the F.I.R. She has refused her medical examination. She is major. 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- Pappu, 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 :- 29.4.2022 Naresh Digitally signed by NARESH KUMAR Date: 2022.04.29 16:30:24 IST Reason: Location: High Court of Judicature at Allahabad