High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25499 of 2022 Applicant :- Saurabh Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Rajiv Lochan Shukla,Akash Dwivedi,Arvind Prabodh Dubey Counsel for Opposite Party :- G.A,Abhishek Chauhan,Shyama Charan Tripathi Hon'ble Rajeev Misra,J.
Legal Reasoning
1. Heard Mr. Rajiv Lochan Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Abhishek Chauhan, the learned counsel for first informant. 2. This application for bail has been filed by applicant - Saurabh Tiwari seeking his enlargement on bail in Case Crime No.559 of 2021, under Section 376, 313, 506 I.P.C., Police Station- Shahpur, District- Gorakhpur, during the pendency of trial. 3. Perused the record. 4. Record shows that first informant/prosecutrix lodged an FIR dated 18.12.2021 which was registered as Case Crime No.559of 2021, under Section 376, 313, 506 I.P.C., Police Station- Shahpur, District- Gorakhpur. In the aforesaid F.I.R, applicant has been nominated as solitary named accused. 5. The gravamen of the allegations made in the F.I.R. is to the affect that deliberately applicant is alleged to have maintained physical relation with the prosecutrix for a period of one year. On account of above, prosecutrix came in family way, however, the same was got aborted by applicant. 6. After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation and prosecutrix was examined under Section 161 Cr.P.C. wherein she has supported the FIR. Thereafter, the prosecutrix was medically examined. The prosecutrix in her statement before the doctor reiterated her earlier statement under Section 161 Cr.P.C. The Doctor who examined the prosecutrix did not find any injury on her body so as to denote commission of sexual assault. With regard to the private part of the prosecutrix, the doctor opined as follows:- "Hymen - torn and old healed." 7. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has supported the FIR but has improved upon her earlier statement under Section 161 Cr.P.C. 8. During course of investigation, the Investigating Officer examined other witnesses also under Section 161 Cr.P.C. who have supported the FIR. On the basis of above and other material collected by Investigating officer during the course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. Accordingly, he submitted the charge-sheet dated 7.5.2022 whereby applicant has been charge- sheeted under Sections 376, 313, 506 IPC, Police Station - Shahpur, District- Gorakhpur. 9. Learned counsel for applicant submits that though applicant is a named as well as charge-sheeted accused but he is innocent. The prosecutrix is major and mother of one child. She is a willing and consenting party. It is on account of above that physical relation with applicant is alleged to have been continued for almost a year. It is then contended that from the FIR, the statement of the prosecutrix as referred to above, it is evident that the FIR is highly belated. However, the delay in lodging the FIR has not been explained by the prosecutrix in the FIR itself nor in her statement referred to above. Placing reliance upon paragraph 8 of the judgment of the Supreme Court in P.Rajagopal vs. State of Tamil Nadu; AIR 2019 Supreme Court 2866, he submits that since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself cannot be maintained. The medical evidence does not support the prosecution story. Present case is a case of false and malicious prosecution, as per the averments made in paragraph 29 of the affidavit filed in support of the present application for bail. Even otherwise applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 04.05.2022, as such, he has undergone more than 6 months of incarceration. In case, applicant is enlarged on bail he shall not misuse the liberty of bail and shall cooperate with the trial. 10. Per contra, the learned A.G.A. and the learned counsel for first informant have opposed the prayer for bail. They jointly submit that since the applicant is a named as well as a charge-sheeted accused, therefore he does not deserve any indulgence by this Court. Taking into consideration, the nature of gravity of the offence, no sympathy be shown by this Court in favour of the applicant. However they could not dislodge the factual/legal submissions urged by learned counsel for applicant. 11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel for informant, upon consideration of evidence on record, accusations made as well as complicity of applicant, coupled with the fact that the prosecutrix is major, a willing and consenting party, the medical evidence does not support the prosecution story as unfolded in the FIR, the delay in lodging the FIR itself having not been explained and also considering the judgment of the Apex Court in P.Rajagopal (Supra), but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 12. Accordingly, present application for bail is allowed. 13. Let the applicant- Saurabh Tiwari involved in aforesaid case crime number be released on bail on his 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) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 14. 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 of applicant and send him to prison. Order Date :- 19.12.2022/Rishabh Digitally signed by RISHABH KUMAR Date: 2023.01.02 11:18:10 IST Reason: Location: High Court of Judicature at Allahabad