Raza v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48504 of 2023 Applicant :- Raza Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Singh Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard Shri Jitendra Singh, the learned counsel for the applicant, learned A.G.A for the State as well as Shri Ankit Singh, the learned counsel for the informant and perused the record.

¶2Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that initially F.I.R. was lodged by the complainant who is father of the victim under Sections 354-A, 294, 504, 506 I.P.C. and Section 7/8 of Protection of Children From Sexual Offences Act. Learned counsel for the applicant further submits that as per the F.I.R. version the age of the victim is about 17 years. Learned counsel for the applicant further submits that in the F.I.R. no date is mentioned regarding occurrence of incident. Learned counsel for the applicant further submits that in her statement recorded under Section 161 Cr.P.C. the victim has stated that on 15.08.2022 when she was returning from college the applicant stopped her and put his hand around her neck and a photograph was clicked by one other person who was along with the applicant, thereafter, by blackmailing her he took the victim at Shahjahanpur Village where he clicked her some obscene photographs and committed her rape. Learned counsel for the applicant further submits that in her statement recorded under Section 164 Cr.P.C. the victim has stated that on the date of incident she talked with the applicant, the applicant told her to go with him at Shahjahanpur on his motorcycle, she went with the applicant to Shahjahanpur Village where applicant committed her rape forcibly. Learned counsel for the applicant further submits that that as per prosecution version initially the alleged incident took place on 15.08.2022 and the F.I.R. has been lodged on

09.06.2023 with a great delay without any plausible explanation made therein. Learned counsel for the applicant further submits that the victim in her statements recorded under Section 161 & 164 Cr.P.C. has repeated the same version of the F.I.R. and made allegation of rape against the applicant. Learned counsel for the applicant further submits that victim has refused for her medical examination to be conducted. Learned counsel for the applicant further submits that as victim has herself refused for her medical examination, therefore, in absence of any medical opinion the allegation of rape made by the victim cannot be proved. Learned counsel for the applicant further submits that in her medical examination the age of the victim was found to be 17 years, thus taking benefit of two years either side the victim is major. Learned counsel for the applicant further submits that as per statements of the victim recorded under Sections 161 & 164 Cr.P.C. there is allegation of rape committed by the applicant upon the victim, but prior to the incident the victim and the applicant used to talk each other and they knew each other very well, thus, it appears that victim is a consenting party, thus, applicant has falsely been implicated in the 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 09.06.2023, having no criminal history.

¶3Per contra, learned A.G.A. as well as learned counsel for the informant have 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-Raza, involved in Case Crime No. 43 of 2023, under Sections 376(3), 120-B, 506 I.P.C. and Section 5(G)/6 of Protection of Children From Sexual Offences Act, Police Station Satti, District Kanpur Dehat, 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 :- 30.11.2023 Mustaqeem. High Court of Judicature at Allahabad