Babloo v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43467 of 2023 Applicant :- Babloo Opposite Party :- State of U.P. Counsel for Applicant :- Kapil Tiwari Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Ram Milan Dwivedi, Advocate holding brief of Sri Kapil Tiwari, learned counsel for the applicant and 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-Babloo, seeking enlargement on bail during trial in connection with Case Crime No. 65 of 2023, under Sections 323, 366, 376 I.P.C., Police Station Qadar Chowk, District Budaun.

¶4The first information report of the present matter was lodged on 11.02.2023 by Sri Krishna against the applicant alleging therein that on 23.01.2023 at about 11 p.m. his daughter aged about 17 years was sleeping in the house where the applicant came there, lured his daughter and enticed her away. She was searched a lot could not be traced.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the victim is a major girl. The Chief Medical Officer, Budaun vide his certificate dated 23.02.2023 has opined the age of victim as 22 years. It is argued that the victim in her statement recorded under Section 161 Cr.P.C. has stated that she went with the applicant. Subsequently in her statement recorded under Section 164 Cr.P.C. she states that the applicant took her to Rajasthan where she was confined in a place for one month and the applicant committed rape upon her and has beaten her with lathi & danda. It is argued the the victim lived with the applicant for one month in Rajasthan. She went from Budaun to Rajasthan without any objection, compliant or resistance whatsoever. It is argued that the victim is a consenting party. The allegation in the statement recorded under Section 164 Cr.P.C. is a totally concocted allegation and under pressure of police and family members. It is argued that the first information report has been lodged after a delay of about 18 days of the victim going missing for which there is no plausible explanation. The applicant has no criminal history as stated in para 27 of the affidavit and is in jail since 27.02.2023.

¶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 first information report has been lodged after a delay of about 18 days of the victim going missing under sections 363, 366 I.P.C. after the victim went with the applicant from Budaun to Rajasthan. There is nothing on record to show any resistance, objection or resentment by the victim while travelling. The applicant and the victim stayed for one month in Rajasthan. There is no allegation in the statement of the victim recorded under Section 161 Cr.P.C. Subsequently in her statement recorded under Section 164 Cr.P.C. she changes her earlier statement.

¶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-Babloo, 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 :- 24.11.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad High Court of Judicature at Allahabad