Phool Chandra Alias Chhotu v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45967 of 2023 Applicant :- Phool Chandra Alias Chhotu Opposite Party :- State of U.P. Counsel for Applicant :- Sunil Kumar Kushwaha Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Sunil Kumar Kushwaha, learned counsel for the applicant, Sri Virendra Pratap Singh, 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 Phool Chandra Alias Chhotu, seeking enlargement on bail during trial in connection with Case Crime No. 464 of 2023, under Sections 363, 366, 376, 342 I.P.C., registered at Police Station Mauranipur, District Jhansi.

¶4The FIR of the matter was lodged under Section 363 IPC on

23.07.2023 by Jagdish against the applicant alleging therein that the applicant who is his son-in-law has enticed away his minor unmarried daughter aged about 16 years.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim was recovered after two days of the said incident and in her statement recorded under Section 161 Cr.P.C. she disclosed her age as 18 years and further stated that on 22.07.2023 at 04:00 pm she went with her brother-in-law (jeeja) who is the applicant without informing anyone in the family and roamed with him, her father has lodged a false FIR. It is argued that subsequently in the statement of the victim recorded under Section 164 Cr.P.C. she states of the applicant calling her out of the house and taking her in a vehicle and committing rape upon her. She further states that he detained her for two days and the applicant committed rape on her twice. After which on 25.07.2023 the police apprehended her and arrested the applicant from the house of the applicant. It is argued that as per school record, the victim is aged about 18 years as such she is a major girl. It is argued that the present case is a case of consent. The medical examination report does not support the prosecution case. Further it is argued that the victim in her statement recorded under Section 161 Cr.P.C. does not support the prosecution case. It is only during investigation Sections 366, 376, 342 IPC was added. He further argued that the applicant has no criminal history as stated in para 25 of the affidavit and is in jail since 03.08.2023.

¶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. There are sharp contradictions in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. She states of going with the applicant out of her own sweet will in her statement under Section 161 Cr.P.C.

¶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 Phool Chandra Alias Chhotu, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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 :- 16.11.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad