Akhilesh Singh and Another v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48322 of 2023 Applicant :- Akhilesh Singh And Another Opposite Party :- State of U.P. Counsel for Applicant :- Ashwani Kumar Pathak Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Ashwani Kumar Pathak, learned counsel for the applicants, 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 applicants Akhilesh Singh and Amresh Singh, seeking enlargement on bail during trial in connection with Case Crime No. 219 of 2023, under Sections 323, 504, 506, 354-A, 376-D IPC, registered at P.S. Kubersthan, District Kushinagar.

¶4The FIR of the matter was lodged on 07.08.2023 under Sections 323, 504, 506, 354(ka) IPC by the victim herself against the applicants and Diwakar alleging therein that she was going for easing herself at about 04:22 am wherein the accused persons met her and after gagging her mouth took her to nearby sugarcane field and enraged her modesty. She raised a shout on which they abused her and assaulted her. They threatened her also. They stated that they would rape her. She somehow managed to save herself and called police on Dial 112 Number on which police came.

¶5Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that subsequently the victim in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. has introduced the factum of three accused persons committing rape upon her. It is argued that the same is a new introduction and is a concocted story as an afterthought in order to falsely implicate and harass the applicants. It is argued that during investigation Section 376-D IPC was added in the matter. It is further argued that the victim is aged about 30 years as has been disclosed by her in her statement under Section 164 Cr.P.C. It is argued that she is a major woman. It is argued that the prosecution case is not consistent with the story regarding gang rape committed upon the victim and had seen the light of the day for the first time when the statements of the victim was recorded during investigation. It is argued that lodging of the present FIR on

07.08.2023 is a malafide intention and a counterblast to a FIR lodged by co-accused Akhilesh Singh against Vivek Singh @ Babu Singh the brother of the first informant which was registered as case crime No. 0208 of 2023, under Sections 323, 504, 506, 308, 354, 452 IPC, P.S. Kubersthan, District Kushinagar. He further argued that the applicant no.1 has no criminal history where as the applicant no.2 has a criminal history of one case in which punishable below seven years and as such no charge sheet filed against him and there has been no arrest of the applicant as stated in para 26 of the affidavit. The applicants are in jail since

24.08.2023.

¶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 woman as stated in her statement under Section 164 Cr.P.C. The allegations of rape against the applicants surfaced for the first time during investigation.

¶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 applicants may be enlarged on bail.

¶9Let the applicants Akhilesh Singh and Amresh Singh, 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.

(v) The applicants 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 applicants are 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 them in accordance with law and the trial court may proceed against them 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 applicants.

¶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 applicants to prison.

¶11The bail application is allowed. Order Date :- 28.11.2023 M. ARIF (Samit Gopal, J.) High Court of Judicature at Allahabad