High Court
Case Details
Court No. - 82 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48858 of 2022 Applicant :- Devkinandan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anuj Kumar Gupta Counsel for Opposite Party :- G.A.,Ajai Mani Tiwari,Seema Pandey Hon'ble Ajai Kumar Srivastava-I,J. Heard learned counsel for the applicant, Sri Ravi Prakash Bhatt, learned A.G.A. for the State/ opposite party No.1, Sri Ajai Mani Tiwari, learned counsel for the complainant/ opposite party No.2, Ms. Seema Pandey, learned counsel for opposite party No.4 and perused the entire record. The instant application for bail has been moved on behalf of the applicant, Devkinandan with the prayer to enlarge him on bail in F.I.R./ Case Crime No.192 of 2022, under Sections 376, 354, 323 I.P.C. and Sections 3/4 POCSO Act, Police Station Hathras Junction, District Hathras, during pendency of the trial.
Legal Reasoning
Learned counsel for the applicant has submitted that the first information report is based on false and fabricated facts. The accused/ applicant is innocent who has been falsely implicated in this case. His further submission is that initially a false first information came to be lodged against three named accused persons including the present applicant. However, upon conclusion of investigation, charge sheet came to be laid against the present applicant only. His next submission is that according to first information report, the victim aged about 16 years was molested by the present applicant at about 09:00 PM. When the victim raised alarm, the accused/ applicant fled away. When the family members of the victim complained about this incident, they were assaulted. His further submission is that in the first information report, there was no averment, whatsoever, about alleged incident of rape. The victim, in her statement recorded under Section 161 Cr.P.C., did not say anything about alleged incident of rape. Even in her statement recorded under Section 164 Cr.P.C., on the date of alleged incident i.e. on 12.07.2022 at about 09:00 PM, the victim stated to have been molested by the present accused/ applicant. However, she, in an afterthought attempt, also alleged that fifteen days prior to the date of incident in question, she was raped by the present applicant also. Such afterthought allegation has been made to falsely implicate the applicant as no first information report was lodged earlier in respect of any alleged incident of rape upon the victim which had happened prior to the date of incident in question i.e. 12.07.2022. The medical report of the victim does not support the prosecution case as no injury has been reported on the body of the victim. Learned counsel for the applicant has also submitted that the accused/ applicant is languishing in jail since 19.07.2022 who has no previous criminal history. His further submission is that in case, the applicant is enlarged on bail, he will not misuse the liberty of bail and he will also fully cooperate with the trial court in getting the trial concluded expeditiously. He has also submitted that the applicant will not intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case. Per contra, learned A.G.A. for the State/ opposite party No.1, learned counsel for the complainant/ opposite party No.2, learned counsel for opposite party No.4 have vehemently opposed the prayer for grant of bail by submitting that the victim is aged about 16 years. The victim is a child. The victim was raped by the present accused/ applicant. Therefore, he does not deserve to be enlarged on bail. However, they have been unable to dispute the other factual submissions advanced by the learned counsel for the applicant. Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of record, it transpires that initially a first information report came to be lodged against three named accused persons including the present applicant for the offence under Sections 354, 323 I.P.C. and Sections 7/8 POCSO Act. However, charge sheet against two other named accused persons, namely, Pankaj and Nitin was not submitted as no evidence against them could be collected during investigation. The victim herself is the victim. Despite this fact, no allegation of rape was made in the first information report. Even in her statement recorded under Section 161 Cr.P.C., no allegation of rape was levelled against the present applicant by the victim. In her statement recorded under Section 164 Cr.P.C., for the first time, the victim stated to have been raped by the present applicant fifteen days prior to the date of incident in question. The accused/ applicant is languishing in jail since 19.07.2022 who has no previous criminal history. Thus, having regard to overall facts and circumstances of this case and also keeping in view the arguments advanced on behalf of the parties, the nature of offence, evidence regarding the complicity of applicant and without expressing any opinion on the merit of the case, a case for bail is made out. The bail application is, thus, allowed. Let the applicant, Devkinandan be released on bail in the aforesaid case on his furnishing a personal bond and two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- 1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial; 2. The applicant shall cooperate in the trial sincerely without seeking any adjournment; 3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail; 4. The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police ofÏcer; 5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, in case the witnesses are present in court; 6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufÏcient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. The learned trial court is also directed to proceed with the trial of the aforesaid case and conclude the same with utmost expedition keeping in view the provisions contained Section 35(2) POCSO Act, in accordance with law, without granting any unnecessary adjournments to the parties, if there is no other legal impediment. It is made clear that the trial of the aforesaid case shall be conducted without being influenced by any observation made herein above which are confined to the disposal of the instant application for bail. (Ajai Kumar Srivastava-I, J.) Order Date :- 8.2.2023 cks/- Digitally signed by :- CHANDRA KANT SINGH High Court of Judicature at Allahabad