Naresh v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47404 of 2023 Applicant :- Naresh Opposite Party :- State of U.P. Counsel for Applicant :- Avijit Saxena Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2It has been argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that on 19.08.2023 an F.I.R. was lodged by the informant, who is father of the victim, against the applicant and two unknown persons, alleging therein that on

17.08.2023 at about 11:00-12:00 in the night when he went to his agricultural field, the accused-applicant with the assistance of his two associates, enticed away her daughter aged about 19 years on a motorcycle and took her anywhere, the applicant committed her rape and threatened her for not saying anything otherwise he will kill her brother and on 19.08.2023 the applicant again threatened her daughter. Learned counsel for the applicant further submits that the victim in her statement recorded under Section 161 Cr.P.C. has stated that she is aged about 19 years, ten days prior to the incident she received a call on the mobile phone of his father where applicant was talking, he said that he wants to marry with her, she told him to talk with her parents, thereafter, they used to talk for 4-5 days thereafter, she did not talk, on the date of incident, i.e., 17.08.2023 at about 11:00 hours in the night the applicant came to her house along with his two associates and took her forcibly by putting a piece of cloth on her mouth and took her in a room and committed her rape and he also threatened her. Learned counsel for the applicant further submits that the victim in her statement recorded under Section 164 Cr.P.C. has repeated the same version as given in her earlier statement recorded under Section 161 Cr.P.C. Learned counsel for the applicant further submits that in the medical examination of the victim the doctor has opined that her hymen was old torned, present and healed, and no internal or external injury was present on her body and her urine pregnancy test became negative. Learned counsel for the applicant further submits that as per the version of the F.I.R. and as per statements of the victim recorded under Sections 161 & 164 Cr.P.C. there is allegation of rape committed by the applicant upon the victim, but before the incident the victim and the applicant used to talk each other and they know each other very well. Learned counsel for the applicant further submits that medical report of the victim also does not corroborate with the allegations made in the F.I.R. as well as in the statements of victim recorded under Sections 161 & 164 Cr.P.C., thus, applicant has falsely been implicated in the case. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 22.08.2023, having no criminal history.

¶3Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence.

¶4After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶5Let applicant-Naresh, involved in Case Crime No. 254 of 2023, under Sections 366, 376, 506 I.P.C., Police Station Adampur, District Amorha, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶6The 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 in accordance with law.

¶7The bail application is allowed. Order Date :- 7.11.2023 Mustaqeem. High Court of Judicature at Allahabad