High Court · 2022

Heard Sri Shiva Tripathi, learned counsel for the applicant, Sri Shivarchan Mishra, learned counsel for the first informant and Sri Ankit Srivastava, 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- Sanjay, seeking enlargement on bail during trial in connection with Case Crime No. 821 of 2021, under Sections 342,376, 504, 506 I.P.C., registered at Police Station Vrindavan, District Mathura. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report of the present matter was lodged under Sections 452, 354, 354 (kha), 504, 506 and 7/8 POCSO Act by Vinod brother of the prosecutrix against the applicant, Vinod and Monu alleging therein that the applicant Sanjay took his sister forcibly in his house and enraged her modesty. He tore her clothes on which his sister shouted after which his mother went there and tried to save her daughter on which Sanjay pushed his mother wherein she fell down. On the next day the family members of Sanjay were complained about it on which he was threatened. The incident is of 06.09.2021 at about 4 AM. Learned counsel for the applicant argued that subsequently in the statement of the first informant recorded under Section 161 Cr.P.C., he reiterates the same version as that of the first information report. Later on the prosecutrix in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. for the first time states that Sanjay committed rape upon her. It is argued that the prosecutrix is a major girl. Her mother in her statement recorded under Section 161 Cr.P.C. has stated the age of her daughter to be about 19 years and even as per the certificate of the school she is aged about 19 years and as such she is a major. It is argued that the medical evidence does not corroborate the prosecution case as the doctor did not find any sign of rape being committed upon her. The story of rape has surfaced for the first time in the statement of the prosecutrix recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. Later on the Investigating Officer converted the case under Sections 342, 376, 504 and 506 I.P.C. The prosecutrix was in love with the applicant and she had gone to the house of the applicant as stated in paragraph 20 of the affidavit. It is argued that the prosecutrix is a consenting party. The applicant has no criminal history as stated in para 23 and is in jail since 21.09.2021. Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail. It is argued the prosecutrix in her statements recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has stated of rape being committed upon her by the applicant. After having heard the learned counsel for the parties and perusing the record, it is evident that the prosecutrix is a major as per the school records and the statement of her mother recorded under Section 161 Cr.P.C. The first information report was lodged after two days of the incident in which there is no allegation of rape. The first informant also does not state of rape being committed on the prosecutrix in his statement recorded under Section 161 Cr.P.C. Subsequently the allegation of rape has surfaced for the first time in the statement of the prosecutrix recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. 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- Sanjay, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of his family members and the other will be of a local member) 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 :- 7.4.2022 AS Rathore (Samit Gopal,J.) SINGH RATHOR Reason: Location: High Court of Judicature at Allahabad