Shivakant Rajak @ Shiva v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42986 of 2023 Applicant :- Shivakant Rajak @ Shiva Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sushil Kumar Pandey,Ramesh Kumar Dwivedi Counsel for Opposite Party :- G.A.,Anil Kumar Kanojia,Shashi Kant Hon'ble Dr. Gautam Chowdhary,J.

¶1Case called out in the revised list. None has appeared on behalf of informant-opposite party No. 2 despite name of counsel is printed in the cause list on his behalf.

¶2The photocopy of ossification test of the victim has been produced by the learned A.G.A. today in Court in compliance of the order dated 10.10.2023, which is taken on record.

¶3Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶4Learned counsel for the applicant submits that applicant is innocent and has falsely been 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 363, 366 I.P.C. against the applicant and two other accused persons alleging therein that accused persons enticed away her minor daughter aged about 13 years forcibly. Learned counsel for the applicant further submits that in her statements recorded under Section 161 & 164 Cr.P.C. the victim has stated that she loved with the applicant and wants to marry with him but her parents were not ready for the same and they fixed her marriage with some other person therefore on her own will she went with the applicant and solemnized marriage with the applicant and they lived for about one month as husband and wife and she has not made any allegation of rape against the applicant. Learned counsel for the applicant further submits that as per the medical examination report of the victim, her hymen was found old torned and healed, no spermatozoa was seen on her vaginal smear and no sign of use of force was found, however, doctor opined that sexual violence cannot be ruled out and final opinion is pending till availability of FSL report, which report is not on the record till date, which fact has also been confirmed by the learned A.G.A. that till date the Investigating Officer has not submitted FSL report of the victim. Learned counsel for the applicant further submits that as per ossification test of the victim her age was found to be more than 16 years and below 17 years, thus taking benefit of two years either side the victim is major. Learned counsel for the applicant further submits that in her statements recorded under Sections 161 & 164 Cr.P.C. the victim has not made any allegation of rape against the applicant and the medical evidence also does not support the prosecution case, and 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 19.02.2023, having no criminal history.

¶5Per contra, learned A.G.A. has 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.

¶6After 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.

¶7Let applicant-Shivakant Rajak @ Shiva, involved in Case Crime No. 05 of 2023, under Sections 363, 366, 376 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Lalapur, District Prayagraj, 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.

¶8The 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.

¶9The bail application is allowed. Order Date :- 1.12.2023 Mustaqeem. High Court of Judicature at Allahabad