Monu v. State of U.P.And 3 Others

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50514 of 2023 Applicant :- Monu Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Kalyan Sundram Srivastava,Sushil Pandey Counsel for Opposite Party :- G.A.,Bratendra Singh Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Kalyan Sundram Srivastava, learned counsel for the applicant, Sri Bratendra Singh, learned counsel for the first informant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.

¶3The Vakalatnama of Sri Bratendra Singh, learned counsel for the first informant is not on record. Office to trace out the same and place it on record and make a note in the order-sheet.

¶4This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Monu, seeking enlargement on bail during trial in connection with Case Crime No. 84 of 2023, under Sections 363, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Ramghat, District Bulandshahr.

¶5The first information report of the present matter was lodged on 04.08.2023 by Satish Chandra against the applicant and Vinay alleging therein that his minor daughter aged about 17 years used to talk to the applicant. On 03.08.2023 the accused persons lured his daughter enticed her away.

¶6Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first informant has stated the victim to be of 17 years of age in the first information report and by giving benefit of variation of two years she would be a major. It is argued that the victim in her statement recorded under Section 161 Cr.P.C. has stated of going with the applicant out of her own sweet-will and further stated that no illegal act was done on her. It is argued that initially the victim refused her medical examination and on external examination no injury was found by the doctor but subsequently her internal medical examination was conducted in which the doctor opined that there are no signs suggestive of use of force. It is argued that later on in the statement of the victim recorded under Section 164 Cr.P.C. the victim changes her version and states of the applicant committing rape upon her. It is argued that co-accused Vinay has been granted bail by the Special Judge (POCSO Act) / Additional Sessions Judge, Bulandshahr in Bail Application No. 5674 of 2023 (Vinay vs. State of U.P.), the copy of the said order is annexed as Annexure-7 to the affidavit. It is argued that the prosecution case is thus not consistent. There are variations, contradictions and improvement in the statement of the victim recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. The applicant has no criminal history as stated in para 20 of the affidavit and is in jail since 10.08.2023.

¶7Per contra, learned counsel for the State opposed the prayer for bail.

¶8After having heard learned counsel for the parties and perusing the record, it is evident that the statement of the victim during investigation is having variance, improvement and contradictions mentioned therein.

¶9Looking 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.

¶10Let the applicant-Monu, 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.

¶11The 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.

¶12The bail application is allowed. Order Date :- 28.11.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad