Shanu Khan v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52424 of 2023 Applicant :- Shanu Khan Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Bind Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Shri Atul Kumar Tiwari, Advocate, has filed his vakalatnama today in Court on behalf of informant, which is taken on record.

¶2Heard learned counsel for the applicant, learned A.G.A for the State as well as learned counsel for the informant and perused the record.

¶3Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that in the F.I.R. the informant who is father of the victim has alleged that his daughter aged about 18 years has been enticed away by the applicant and his family members and at the time of going his daughter has taken away some gold ornaments and twenty thousand rupees, and when he reached to the house of accused persons to make complaint the accused persons while abusing him had assaulted and threatened him for dire consequences. Learned counsel for the applicant further submits that the victim in her statement recorded under Section 161 Cr.P.C. has stated that she is aged about 19 years, on the date of incident she went outside the house to purchase medicines, where Afzal met her and talked with her, thereafter he served him water, thereafter a tempo came there in which applicant and his brothers and father were present and she sat in the tempo, thereafter, she became unconscious and she regained her consciousness in Baroda, she used to talk with the applicant prior to the incident, they solemnized marriage and she has not made any allegation of rape against the applicant, but in her statement recorded under Section 164 Cr.P.C. the victim has stated that applicant has made sexual relations with her without her consent. Learned counsel for the applicant further submits that in the medical examination of the victim no internal or external injury was found on her person, her hymen was old torn and healed and no sign of use of force was seen by the doctor and doctor has opined that final opinion can be given after availability of FSL report. Learned counsel for the applicant further submits that there are various contradictions in the statements of the victim recorded under Section 161 & 164 Cr.P.C., when the victim went she took some gold ornaments and twenty thousand rupees, thus, it appears that victim is a consenting party and the 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 24.08.2023, having no criminal history.

¶4Per 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.

¶5After 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.

¶6Let applicant-Shanu Khan, involved in Case Crime No. 209 of 2023, under Sections 366, 376, 328, 120-B I.P.C., Police Station Jahanganj, District Farrukhabad, 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.

¶7The 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.

¶8The bail application is allowed. Order Date :- 7.12.2023 Mustaqeem. High Court of Judicature at Allahabad