Jhhunnu Kol@ Guman v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45045 of 2023 Applicant :- Jhhunnu Kol@ Guman Opposite Party :- State of U.P. Counsel for Applicant :- Jai Prakash Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Vipin Kumar, Advocate holding brief of Sri Jai Prakash, learned counsel for the applicant, Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Jhhunnu Kol @ Guman, seeking enlargement on bail during trial in connection with Case Crime No. 323 of 2021, under Sections 376-D, 506 I.P.C., registered at Police Station Shankargarh, District Prayagraj.

¶4The FIR of the matter was lodged on 13.10.2021 on the basis of an application moved under Section 156(3) Cr.P.C. by the victim alleging therein that co-accused Ajay used to tease her and used to tell her to accept his friendship. On 04.08.2021 at about 10:00 am when she had gone for cutting grass for animals the accused persons caught hold of her and committed rape upon her.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that as per radiological opinion the age of the victim was opined to be above 18 years and below 20 years. It is argued that the CMO concerned opined the age of the victim to be about 18 years. It is further argued that the victim in her statement recorded under Section 164 Cr.P.C. has stated of her being 20 years of age. It is argued that the medical examination report does not support the prosecution case as the doctor did not find any injury either on the body of the or the victim or on her private parts. It is further argued that co-accused Ajay was the person who was teasing the victim and had offered friendship with her, has been granted bail by a co-ordinate Bench of this Court vide order dated 18.04.2023 passed in Crl. Misc. Bail Application No. 59791 of 2022 (Ajay Adivasi Vs. State of U.P.), copy of the order is annexed as annexure 6 to the affidavit. He further argued that the applicant has no criminal history as stated in para 16 of the affidavit and is in jail since

27.06.2023.

¶6Per contra, learned counsel for the State opposed the prayer for bail.

¶7After having heard learned counsels for the parties and perusing the records, it is evident that the victim is a major girl. The medical examination report does not support the prosecution case. The motive as per FIR was on co-accused Ajay Adivasi, has been granted bail.

¶8Looking 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.

¶9Let the applicant Jhhunnu Kol@ Guman, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties of the applicant will be his family member and the other to be of local person) 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.

¶10The 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.

¶11The bail application is allowed. Order Date :- 27.10.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad