Sunil @ Tuinya v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48725 of 2023 Applicant :- Sunil @ Tuinya Opposite Party :- State of U.P. Counsel for Applicant :- Akhilesh Kumar Mishra,Devendra Kumar Counsel for Opposite Party :- G.A.,Mohd. Akbar Shah Alam Khan Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Akhilesh Kumar Mishra, learned counsel for the applicant, Sri Mohd. Akbar Shah Alam Khan, learned counsel for the first informant and Sri Ajay Singh, learned A.G.A.-I 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-Sunil @ Tuinya, seeking enlargement on bail during trial in connection with Case Crime No. 130 of 2021, under Sections 147, 148, 149, 323, 324, 376-D, 504, 506 I.P.C., Police Station Ratanpuri, District Muzaffarnagar.

¶4The first information report of the present matter was lodged on 16.09.2021 by Beer Singh against the applicant, 03 named persons and 02 unknown person on the basis of an application dated 21.08.2021 moved u/s 156 (3) Cr.P.C. alleging therein that his bhabhi was going on foot. On 11.08.2021 at about 7.30 p.m. the accused persons due to enmity between them caught hold of her and committed rape on her. She was also assaulted due to which she receive injuries.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first information report has been lodged on the basis of an application u/s 156 (3) Cr.P.C. which has been moved after a delay of about 10 days of the present incident. It is argued that in so far as the allegation of rape is concerned, there is no corroboration of the same through medical evidence. It is further argued that the matter was re-investigated and a final report was submitted after which a protest petition was filed and then vide order dated 27.06.2022 the applicant, Deepak, Gaurav and Ankit were summoned to face trial. It is argued that co-accused Ankit Kumar has been granted bail by a co-ordinate Bench of this Court vide order dated

01.11.2023 passed in Criminal Misc. Bail Application No. 45484 of 2023, the copy of the said order has been produced before the Court which is taken on record. It is argued that the victim is a major woman. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since

27.07.2023.

¶6Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the first information report and even in the statements of the victim and there are allegations of the applicant and co-accused persons committing rape upon the victim.

¶7After having heard learned counsel for the parties and perusing the record, it is evident that the present first information report was lodged on the basis of an application u/s 156 (3) Cr.P.C. moved after 10 days of the incident. After investigation a final report was submitted on which a protest petition was filed then the applicant and other co-accused persons namely Deepak, Gaurav and Ankit were summoned. Co-accused Ankit Kumar has been granted bail by a co-ordinate Bench of this Court.

¶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-Sunil @ Tuinya, 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 :- 29.11.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad