Naseem v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47042 of 2023 Applicant :- Naseem Opposite Party :- State of U.P. Counsel for Applicant :- Pawankumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Pawankumar Dubey, learned counsel for the applicant and Sri Bade Lal Bind, 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-Naseem, seeking enlargement on bail during trial in connection with Case Crime No. 344 of 2023, under Sections 498-A, 323, 506, 376 I.P.C., Police Station Roza, District Shahjahanpur.

¶4The first information report of the present matter was lodged on 24.05.2023 by the victim herself against the applicant and 04 other persons alleging therein that she was married around 08 years back with Zahiruddin. After marriage the accused persons were torturing and beating her for dowry. She made a complaint about it at the police station after which there was a settlement and she was again brought back to her matrimonial house. Her husband, in-laws again used to assault her. She suffered a fracture in her finger which was got treated. She has a son of four years. She is now pregnant. Her husband Zahiruddin used to establish forceful physical relationship and on opposition he used to beat her. Her jeth Naseem (the applicant) used to catch hold of her and enrage her modesty. When she used to oppose it, she used to be locked in room and was assaulted. The first information report was lodged under Sections 498-A, 323, 506, 354 I.P.C.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim in her statement recorded under Section 161 Cr.P.C. has stated that the applicant committed rape upon her around two years back. It is argued that the same is a concoction and an afterthought just in order to falsely implicate and harass the applicant. It is argued that the applicant is the jeth of the victim. It is further argued that during investigation section 376 I.P.C. was added in the matter and section 354 I.P.C. was deleted. It is argued that the factum regarding the applicant committing rape upon the victim has not been mentioned in the first information report. Later on the victim in her statement recorded under Section 164 Cr.P.C. again changes her earlier version and states that the applicant has been committing rape upon her since 11/2 years. It is argued that the prosecution story is not consistent in itself. The applicant has no criminal history as stated in para 20 of the affidavit and is in jail since 28.09.2023.

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

¶7After having heard learned counsel for the parties and perusing the record, it is evident that the applicant is the jeth of the victim who is the first informant. The prosecution story has regularly been improved from the first information report up to the statement of the victim recorded under Section 164 Cr.P.C. The factum regarding rape upon the victim / first informant is missing in the first information report.

¶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-Naseem, 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 :- 22.11.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad High Court of Judicature at Allahabad