High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54716 of 2021 Applicant :- Wajid Quareshi Opposite Party :- State of U.P. Counsel for Applicant :- Shravana Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J. Perusal of the record would reveal that notice, which was sent by this Court for the purpose of service on the informant, is reported to have been served by the Chief Judicial Magistrate, Saharanpur vide his report dated 19.05.2022. The report is available on record. Learned A.G.A. has also submitted that the notice has also been served through him as is evident from the report of the investigating officer, a copy of this report is taken on record.
Legal Reasoning
Heard Shri Shravana Kumar Yadav, 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- Wajid Quareshi for grant of bail, in Case Crime No.268 of 2021, under Sections 376(3), 354(Da), 506 I.P.C. and Section 5(Tha)/6 of the P.O.C.S.O. Act, Police Station Nanauta, District Saharanpur, 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 though the applicant was named in the F.I.R. and the allegations of only molestation, teasing and of threatening were levelled in the F.I.R. lodged by the father of the prosecutrix on 24.09.2021 and the applicant has obtained regular bail for offences under Sections 354A, 294, 506 I.P.C. from the subordinate court. However, it was after the bail was obtained by the applicant, a new story has been cooked up by the prosecutrix in her statement recorded under Sections 161 and 164 Cr.P.C., she amongst other allegations had stated that it was on 20.09.2021 at about 08:45pm when she was alone in the house, the instant applicant had entered into the house and by threatening her had raped her and she had narrated the incident to her uncle and brother. Highlighting the above factual matrix, it is vehemently submitted on behalf of the applicant that it was only when the applicant was granted bail under Sections 354A, 294, 506 I.P.C., wherein the F.I.R. was lodged, only for the purpose of harassing and placing the applicant behind bars, story of commission of rape has been cooked up and the same is belied by the statement of the prosecutrix herself that when she had narrated the commission of rape to her brother and uncle, why the said fact has not been found in the F.I.R. lodged by the father of the prosecutrix. It is further submitted that the factum of rape has also not been corroborated by the medical evidence as no injury of any kind has been found on her person in the medical report. The age of the prosecutrix as per medical report is stated to be about 17 years and as per educational certificate is about 16 years, thus though she was not major at the time of alleged incident, but was capable of taking decisions. While drawing attention of this Court towards a part of the statement of the prosecutrix recorded under Section 164, it is submitted that in response to a question put by the magistrate, prosecutrix had replied that prior to the incident, she had made sexual relations with the accused applicant and this shows that she was a consenting party and had taken U-turn of the facts as narrated in the F.I.R. under the influence of her family members. It is next submitted that applicant is in jail in this case since 01.10.2021 and he is not having any criminal history and there is no apprehension that after being released on bail the applicant 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 having regard to the manner in which the crime has been committed, he is not entitled to be released on bail. Having heard learned counsel for the parties and having perused the record, it is evident that though the age of the prosecutrix has been determined about 17 years through ossification process and as per educational certificate, she comes to the age of about 16 years at the time of incident, but in the F.I.R. lodged by the father of the prosecutrix, commission of rape has not been mentioned. It is the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. for the very first time, factum of commission of rape has been introduced. It is vehemently submitted on behalf of the applicant that when the applicant had obtained bail under Sections 354A, 294, 506 I.P.C., the prosecutrix in order to place the applicant behind bars has aggravated the allegations. However, the story as cooked up by the prosecutrix is not substantiated by medical evidence. It is also submitted that the prosecutrix is stated to have narrated the incident of rape, which had occurred on 20.09.2021 to her brother and uncle and the F.I.R. has been lodged on 24.09.2021, however, the factum of rape is missing in the F.I.R. Applicant is in jail in this case since 01.10.2021 without any previous criminal history. The presence of the applicant could be secured before the trial court by placing adequate conditions. Having regard to the overall facts and circumstances of the case and 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- Wajid Quareshi 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 of this Court on the merits of the case. Order Date :- 20.5.2022 Anupam S/- Digitally signed by ANUPAM SINGH PATEL Date: 2022.05.20 16:47:45 IST Reason: Location: High Court of Judicature at Allahabad