High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53591 of 2021 Applicant :- Ankit Nishad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anil Kumar Chaudhary Counsel for Opposite Party :- G.A.,Janardan Singh,Lal Behari Yadav Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Anil Kumar Chaudhary, learned counsel for the applicant, Sri Lal Behari Yadav, learned counsel for the first informant and Sri Satish Kumar Singh, learned counsel for the State and perused the material on record. On 05.01.2022 the following order was passed: "Sri Anil Kumar Chaudhary, learned counsel for the applicant, Sri Janardan Singh, learned counsel for the first informant and Sri Satish Kumar Singh, learned counsel for the State are present. The medical examination of the prosecutrix was conducted on 18.09.2021. She was subjected to radiological examination on 20.09.2021 after which there was a noting in the supplementary medico legal report dated 25.09.2021 of District Women Hospital, Mau which reads as follows:- "Since opinion regarding age cannot be given single handedly in this case, this case may be referred to medical board, C.M.O. office, Mau for determination of age." The radiological, pathological reports and skiagrams were enclosed. Learned counsel for the applicant states that even in spite of the said reference, there is no further supplementary report regarding the opinion of the age of the prosecutrix by the Medical Board or the C.M.O. concerned. Learned counsel for the State is directed to seek instructions with regard to the same within a period of 10 days from the C.M.O., Mau. List this case on 25.01.2022 as fresh." Learned counsel for the State has produced before the Court report of the Chief Medical Officer, Mau dated 20.01.2022 along with two X-Ray plates and a covering letter. The original copy of the same is taken on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Ankit Nishad, seeking enlargement on bail during trial in connection with Case Crime No. 571 of 2021, under Sections 376(3), 506 I.P.C. and 3/4, 5/6 POCSO Act, registered at Police Station Ghosi, District Mau. Learned counsel for the applicant argued that although the applicant is named in the first information report which has been lodged under Sections 376, 506, 3/4 POCSO Act and there is an allegation of his committing rape upon the daughter of the first informant who is aged about 14 years but the same is false and incorrect. It is argued that the prosecutrix in her statement recorded under Section 161 Cr.P.C. has stated that the applicant was her neighbour and under threat he used to establish physical relationship with her since last one year. It is argued that in the statement recorded under Section 164 Cr.P.C. the prosecutrix has reiterated her version as stated in her statement recorded under Section 161 Cr.P.C. It is argued that the medical evidence does not corroborate the prosecution case. The doctor has not found any injury on her body and even on her private parts. Learned counsel has argued while placing paragraph 11 that the mother of the victim had taken money from the father of the applicant to the tune of Rs. 40,000/-, the same was being demanded and the present first information report has been lodged. It is argued that the prosecutrix is a major girl. The applicant has no criminal history as stated in para 12 and is in jail since 18.09.2021. Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail. Learned counsel for the State while placing the certificate of the Chief Medical Officer, Mau dated 20.01.2022 has stated that the Chief Medical Officer has opined the age of the prosecutrix as about 19 to 20 years. It is argued that the applicant is named in the first information report and there are allegations against him. After having heard the learned counsel for the parties and perusing the record, it is evident that as per the certificate of the Chief Medical Officer concerned the prosecutrix is a major girl. As per her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. she states that the applicant was committing rape upon her since last one year but still there was no complaint previously regarding the said act. The medical evidence does not corroborate the prosecution case. 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- Ankit Nishad, 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 :- 30.3.2022 AS Rathore (Samit Gopal,J.) Digitally signed by ABHISHEK SINGH RATHOR Date: 2022.03.31 09:43:59 IST Reason: Location: High Court of Judicature at Allahabad