High Court
Case Details
Neutral Citation No. - 2023:AHC:190107 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41229 of 2023 Applicant :- Chand Ali Opposite Party :- State of U.P. Counsel for Applicant :- Satish Chandra Singh Counsel for Opposite Party :- G.A.,Awadhesh Kumar Yadav Hon'ble Samit Gopal,J. 1. List revised.
Legal Reasoning
2. Heard Sri Satish Chandra Singh, learned counsel for the applicant, Sri Abhishek Yadav, Advocate, holding brief of Sri Awadhesh Kumar Yadav, learned counsel for the first informant, Sri Ajay Singh, learned A.G.A.-I and perused the material on record.
Legal Reasoning
3. There is no vakalatnama of Sri Awadhesh Kumar Yadav, learned counsel for the first informant on the record. Office to locate it out and place it on record and make note about it in the order sheet. 4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Chand Ali, seeking enlargement on bail during trial in connection with Case Crime No. 171 of 2023, under Sections 376, 323, 504, 506 I.P.C., registered at P.S. Shoharat Garh, District- Siddharth Nagar. 5. The F.I.R. of the matter was lodged on 04.6.2023 by the victim herself under Sections 323, 504, 506 I.P.C. against the applicant alleging therein that the applicant is doing driving in her village. Due to old enmity on 02.06.2023 he assaulted her due to which she received injuries. On shouts a lot of people of nearby collected and intervened. The applicant while going hurled abuses and threatened. 6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that in so far as the injuries of the first informant is concerned the doctor found two abrasions on her body and there was complaint of pain in lower abdomen and back. The injury nos. 1 and 2 being abrasions were opined to be simple in nature whereas for the injury no. 3 being complaint of pain in the lower abdomen and back, she was referred to a gynecologist. It is argued that the victim when produced before the gynecologist refused her internal examination. Learned counsel further argued that the victim was opined by the C.M.O. concerned to be above 25 years of age and as such she is a major woman. It is argued that as a matter of fact she stated her age to be 35 years in the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. It is argued that the victim in her statement recorded under Section 161 Cr.P.C. changes the prosecution version and states of the applicant committing rape upon her and then assaulted her. She further states of the applicant looting Rs.5,000/- from her. It is argued that in the statement recorded under Section 164 Cr.P.C. she improves the version and again states of the applicant committing rape upon her and assaulting her and threatening her with life and the story with regards to looting of money is given up in the said statement. It is argued that the prosecution story is not consistent and the factum of rape is missing in the F.I.R. lodged by the victim herself. It is argued that the applicant has no other criminal antecedents as stated in para-23 of the affidavit and is in jail since 10.06.2023. 7. Per contra, learned State counsel and learned counsel for the first informant opposed the prayer for bail and argued that the applicant is named in the F.I.R. and he is stated to have assaulted the victim, and, further during investigation it was disclosed by the victim that she has been raped. 8. After having heard learned counsels for the parties and perusing the record, it is evident that although the applicant is named in the F.I.R. but there is no allegation of rape against him. Later on during investigation the victim in the statement under Section 161 Cr.P.C. states of the applicant committing rape upon her and looting Rs.5000/-. Further in the statement under Section 164 Cr.P.C. she states of the applicant committing rape upon her but gave up the allegation of looting of money. The prosecution story is not consistent and the factum of rape is missing in the F.I.R. lodged by the victim herself. 9. 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. 10. Let the applicant- Chand Ali, 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. 11. 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. 12. The bail application is allowed. (Samit Gopal,J.) Order Date :- 4.10.2023 Naresh Digitally signed by :- NARESH KUMAR High Court of Judicature at Allahabad