High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51212 of 2021 Applicant :- Nilesh @ Nate Mishra Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sunil Singh,Adarsh Bhushan Counsel for Opposite Party :- G.A.,Rajendra Prasad Mishra,Surendra Kumar Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Adarsh Bhushan, learned counsel for the applicant, Sri Surendra Kumar, learned counsel for the first informant and Sri Raj Kumar Gupta, learned counsel 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- Nilesh @ Nate Mishra, seeking enlargement on bail during trial in connection with Case Crime No. 125 of 2021, under Sections 376, 452, 506 I.P.C. & 3/4 POCSO Act registered at Police Station Maharajganj, District Jaunpur. The first information report of the present case was lodged on 21.07.2021, under Sections 452, 354(Ka), 376, 511, 506 I.P.C. and Section 7/8 POCSO Act by Harish Mishra, the father of the prosecutrix against the applicant only alleging therein that his daughter is aged about 15 years. The applicant was his neighbour and used to trouble his daughter since last one year. On 17.07.2021 at about 10:30 PM, the applicant entered into the house of Jatashanker Mishra the elder brother of the first informant and made an attempt to commit rape upon his daughter on which his daughter raised shout but did not tell him anything. On her shout the first informant and his elder brother Jatashanker Mishra came inside and found the applicant present there. When they tried to apprehend him, he pushed them and ran away through roof. His mobile and his slippers were left at the house. They thought that the applicant came in the house with an intention to commit robbery. The police was informed on Dial 112 No. One of the elder brothers of the first informant had died and his terahavi was to be solemnized on 18.07.2021. The family was in grief. After terahavi was over then it was decided to lodge the first information report. His daughter in the meantime told her mother about the incident. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that as per the certificate of the Chief Medical Officer, Jaunpur, the age of the prosecutrix has been opined to be 17 years and by giving variation of two years, she would be a major. It is argued that for the first time in the statement of the prosecutrix recorded under Section 161 Cr.P.C. she states that the applicant committed rape on her. She reiterates the same version in her statement recorded under Section 164 Cr.P.C. but in a much more designed and a better version which appears to be due to tutor and prompting of her family members. It is argued that the first informant and his elder brother reached the place of occurrence on the shout of the prosecutrix and as such not coming to know of rape being committed on the prosecutrix would be an impossibility. It is argued that even the prosecutrix not telling her father and her uncle when the applicant was present at the place of occurrence about rape being committed on her is totally an improbable conduct. It is argued that after the statement of the prosecutrix, Section 376 I.P.C. was added in the matter. It is argued that the applicant has been falsely implicated in the present case. It is argued that charge-sheet in the matter has been submitted on 22.10.2021 and as such there are no chances of the applicant tampering with the evidence or threatening the witnesses. The first information report has been lodged after 04 days of the incident which is alleged to have taken place on 17.07.2021 but the first information report has been lodged on 21.07.2021 for which there is no plausible explanation. The applicant has no criminal history as stated in para 41 and is in jail since 21.10.2021. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail. Learned counsel for the first informant argued that the allegation of rape was not mentioned in the first information report by the first informant only because of the reason that he tried to avoid disrepute of his daughter. It is argued that the applicant is named in the first information report, statements of the prosecutrix recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. and as such he is involved. After having heard the learned counsel for the parties and perusing the record, it is evident that the first information report has been lodged after 04 days of the incident. There is no plausible explanation regarding the delay in lodging off the first information report. The story regarding rape being committed on the prosecutrix has come in the case for the first time in her statement recorded under Section 161 Cr.P.C. which has subsequently been reiterated by her in her statement recorded under Section 164 Cr.P.C. The first information report was lodged by the first informant who reached the place of occurrence on the shout of the prosecutrix at the time of incident along with his elder brother but even then there is no allegation of rape. 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- Nilesh @ Nate Mishra, 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. Order Date :- 21.2.2022 AS Rathore (Samit Gopal,J.) Digitally signed by ABHISHEK SINGH RATHOR Date: 2022.02.23 16:38:33 IST Reason: Location: High Court of Judicature at Allahabad