High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51123 of 2021 Applicant :- Rahul Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Tripathi Counsel for Opposite Party :- G.A.,Manoj Kumar Hon'ble Mohd. Faiz Alam Khan,J. It is informed by learned A.G.A. that the notice of the instant bail application has been served on the concerned C.W.C. as well as on the informant as intimated by the S.H.O., Police Station Sarnath, District Varanasi vide his communication dated 08.12.2021. Despite service of notice to the informant and other necessary parties no one is present on their behalf. Learned A.G.A. is directed to place a copy of the communication of S.H.O., Police Station Sarnath, District Varanasi as well as the copy of information made available to the informant, on record.
Legal Reasoning
Heard Shri Anil Kumar Tripathi, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record. This bail application has been moved by the accused/applicant- Rahul Gupta for grant of bail, in Case Crime No. 313 of 2021, under Sections 363, 366, 376(3), 343, 504, 506 I.P.C. and Section 3/4 (2) Protection of Children from Sexual Offences Act, Police Station Sarnath, District Varanasi, during trial. Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution. It is further submitted that the first information report of the incident was lodged by the father of the prosecutrix on 06.08.2021 at Police Station Sarnath, District Varanasi alleging therein that the prosecutrix, whose date of birth is 13.08.2006 had enticed away by the applicant and she was not traceable, however, in the night of 05.08.2021 at about 8:00 pm. the above-mentioned Rahul (applicant) had left his daughter at the outskirt of the village and she told that on the pretext of visiting a temple the applicant had taken her to somewhere and where he administered some noxious substance and kept her at various places and also committed rape on her and also made obscene videos. On being recovered, the statement of the prosecutrix was recorded under Section 161 and 164 Cr.P.C., respectively. On 07.08.2021 and 27.08.2021, wherein the prosecutrix had stated that she was in love with the applicant and one day the applicant had called her on her mobile phone and asked her to accompany him and she accompanied him, she took her to the Court (Kucchehri) and obtained her signature on various papers and thereafter they went to Pandeypur and remain there and also cohabited. He was also threatening her. In her statement recorded under Section 164 Cr.P.C. the prosecutrix improvised her statement to the tune that the applicant had locked her in a room at Pandeypur and was also threatening and assaulting her and was committing rape on her. In the additional statement of the prosecutrix, the prosecutrix has negated the allegations pertaining to the making of unnatural relations, also of administering noxious substance and also of physical assault. No injury of any kind has been found on the person of the prosecutrix in her medical examination. Highlighting the above facts, it is vehemently submitted that the conduct of the prosecutrix would clearly reveal that she was a consenting party and had accompanied the applicant on her own volition and the aggravated allegations levelled in the statement recorded under Section 164 Cr.P.C. are the result of tuition of her family members as no such allegation has been levelled in her statement recorded under Section 161 Cr.P.C. and it is noticeable that the statement under Section 164 Cr.P.C has been recorded 20 days after the statement of Section 161 Cr.P.C. and during this period the prosecutrix was residing with her family members. It is further submitted that there are material contradictions in the statement of the prosecutrix recorded under Section 161 Cr.P.C, 164 Cr.P.C. and the additional statement recorded under Section 161 Cr.P.C. It is also submitted that no marks of any injury or forceful sexual cohabitation has been found on the person of the prosecutrix. The age of the prosecutrix as per the educational certificate is 15 years, however, as per the certificate issued by the C.M.O., Varanasi of date 13.08.2021 she comes to be of 19 to 20 years and in the marriage certificate given by the Registrar (Marriage), Varanasi her date of birth has been shown as 01.01.1999. Thus, she at the time of the alleged incident was major and was of consenting age and, therefore, no offence has been committed by the applicant. It is further submitted that date of birth as alleged in the School Living Certificate of Class-V could not be believed in the background of the certificate issued by the C.M.O. Varanasi on the basis of ossification test as well as the certificate of marriage issued by the Registrar (Marriage), Varanasi, wherein the date of birth of the prosecutrix has been recorded as 01.01.1999 and keeping in view the certificate of marriage issued by the Registrar (Marriage), Varanasi, the prosecutrix is the legally wedded wife of the applicant. It is next submitted that applicant is in jail in this case since 08.08.2021 and he is not having any criminal history. Charge- sheet in this case has already been submitted and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty. Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed heinous offence and therefore, he is not entitled to be released on bail, but could not controvert the other submissions of learned counsel for the applicant with regard to the fact that the prosecutrix appears to be consenting party. Having heard learned counsel for the parties and having perused the record, it is an admitted fact that before some months lodging of the F.I.R. precisely on 11.04.2021 the prosecutrix is stated to have eloped with the instant applicant. She was recovered/brought back on 05.08.2021. The first information report has been filed on 06.08.2021. No mark of injury has been found on the person of the prosecutrix. The age determined by the ossification test of the prosecutrix is stated to be 19 to 20 years by the Chief Medical Officer, Varanasi. The applicant and prosecutrix are stated to have solemnized the marriage before the Registrar (Marriage), Varanasi and in this regard a certificate of marriage has also been issued which has not been cancelled till yet. It is vehemently submitted on behalf of the applicant that having regard to the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. as well as in the additional statement of Section 161 Cr.P.C. she appears to be a consenting party and having regard to her age, she was capable of making decisions. Applicant is in jail in this case since 08.08.2021 without any criminal antecedents. Charge- sheet in this case has also been submitted and the presence of the applicant could be secured before the trial court by placing adequate conditions. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed. Let the accused/applicant- Rahul Gupta involved in above- mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case. Order Date :- 17.5.2022 Praveen Digitally signed by PRAVEEN KUMAR Date: 2022.05.17 13:24:36 IST Reason: Location: High Court of Judicature at Allahabad