High Court
Case Details
Court No. - 67 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45252 of 2020 Applicant :- Kamil Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Singh,Arvind Kumar,Bhavya Sahai Counsel for Opposite Party :- G.A.,Maohammd Nadeem Hon'ble Vivek Kumar Singh,J. II Supplementary affidavit dated 4.3.2022 filed by learned counsel for the applicant is taken on record.
Legal Reasoning
tempering of the witnesses and prima facie satisfaction of the Court in support of the charge and reformative theory of punishment the applicant is entitled to be released on bail in this case. Let the applicant Kamil involved in Case Crime No.301 of 2020, under Sections 452, 376, 328 I.P.C. and Section 3/4 of the Protection of Children From Sexual Offence Act, Police Station Gursahayganj, District Kannauj be released on bail on his furnishing a personal bond with two sureties (one should of family member) each in the like amount to the satisfaction of the court concerned with the following conditions. (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) 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. is issued and the 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 of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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. In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. The trial Court is directed to expedite the trial of the present case and conclude the same as expeditiously as possible, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and another reported in AIR 2018 (SC) 2440, if there is no legal impediment. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. Order Date :- 24.3.2022 Dev/- Digitally signed by DEV PRAKASH Date: 2022.03.30 13:51:51 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Heard Sri Arvind Kumar Srivastava and Sri Bhavya Sahai, learned counsel for the applicant and Mohammad Nadeem, learned counsel for the complainant and Sri Sanjay Singh, learned A.G.A.-I appearing for the State. As per F.I.R. the prosecution's case is that on 22.6.2020 at about 11:00 pm, when mother and father of the victim were out of station, applicant along with two other persons entered in the house of the victim and given some poisonous substance mixing in sweet to the elder sister of the victim by which she fainted and thereafter applicant committed rape on her. It is contended by the learned counsel for the applicant that applicant is innocent. He has not committed any offence as alleged. The F.I.R. has been lodged with the delay of four days for which no plausible explanation has been given by the prosecution which itself falsify the prosecution story. It is next argued that in medical report and X- ray report, age of the victim and her elder sister were found to be 18 years each, which is annexed as Annexure-2 to the bail application. It is further submitted that in medical test of the elder sister of the victim, poison was not found to have been consumed by her and neither any internal or external injury was found on her person which is suggesting that no rape has been committed on her. It is further argued that only Victim Tabassum in her statement recorded under Section 164 Cr.P.C. has stated that wrong act was done by the applicant with her, although medical report of the victim as well as the statement of the elder sister of the victim, do not corroborate with the prosecution story. It is further argued that when the rape has been committed upon the victim, as to why, any hue and cry has not been made by her younger sister aged about 9 years, who was present there, which also makes entire prosecution story doubtful. Learned counsel for the applicant has drawn attention of the court towards paragraph no. 11 of the affidavit accompanying this bail application wherein it is mentioned that earlier mother of the victim had lodged an F.I.R. against the three persons as Case Crime No. 409 of 2011, under Sections 363, 366, 376(2) (G) I.P.C. in which all the three persons were acquitted and drawing the attention to the said fact, it is argued that she is habitual to implicate the villagers and reputed persons in false cases levelling the case under Section 376 IPC involving her daughters, which makes the entire prosecution story false and fabricated. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 1.7.2020. It has been pointed out that the applicant has no criminal history. Learned counsel for the complainant as well as learned A.G.A. have opposed the prayer for bail. Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of