Mohit Rathaur v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49961 of 2023 Applicant :- Mohit Rathaur Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sarvesh Kumar Dubey 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 the F.I.R. was lodged against the applicant alleging therein that on the last night when his minor daughter aged about 16 years went outside the house to meet nature call then the applicant caught her and committed her rape forcibly, when accused was committing rape of her minor daughter, she made noise then the complainant and his son went outside the house and tried to catch the applicant but he fled away while abusing him by caste. Learned counsel for the applicant further submits that complainant has repeated the same version of F.I.R. in his statement recorded before the police. Learned counsel for the applicant further submits that in her statement recorded under Section 161 Cr.P.C. the victim has stated that on the date of incident at about 1:00 a.m. in night she was sleeping on the roof of the house, at that time when she had gone to bathroom then applicant was present on the staircase, he took her and after closing the door he committed her rape and when she made noise her family members reached there, whereas in her statement recorded under Section 164 Cr.P.C. the victim has stated that applicant committed her rape forcibly and she was alone in the house. Learned counsel for the applicant further submits that in her medical examination her hymen was found old, torn and healed, and no any sign of sexual assault found on the internal or external examination of the victim, however, final opinion was reserved pending as availability of FSL report and sexual violence cannot be ruled out. Learned counsel for the applicant further submits that till date no FSL report is available, which fact has also been confirmed by the learned A.G.A. Learned counsel for the applicant further submits in the supplementary medical examination report of the victim she was found to be aged about 18 years. Learned counsel for the applicant further submits that there are several contradictions in the statements of the victim recorded under Section 161 & 164 Cr.P.C. and the medical report of the victim also does not support the prosecution 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 03.09.2023, 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-Mohit Rathaur, involved in Case Crime No. 699 of 2023, under Sections 452, 376, 504 I.P.C. read with Section 3/4 of Protection of Children From Sexual Offences Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kannauj, District Kannauj, 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 :- 22.11.2023 Mustaqeem. High Court of Judicature at Allahabad