Gyasi @ Gaurav Ahirwar v. State of U.P. and 3 Others

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51678 of 2023 Applicant :- Gyasi @ Gaurav Ahirwar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jai Singh Parihar Counsel for Opposite Party :- G.A.,Shiva Priya Prasad Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Jai Singh Parihar, learned counsel for the applicant, Sri Shiva Priya Prasad, learned counsel for the first informant and Sri Birendra Pratap Singh, 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 applicant-Gyasi @ Gaurav Ahirwar, seeking enlargement on bail during trial in connection with Case Crime No. 72 of 2023, under Sections 376, 452, 506 I.P.C. & Section 3/4 POCSO Act, Police Station Kakarbai, District Jhansi.

¶4The first information report of the present matter was lodged on 18.08.2023 by Ram Bihari against the applicant alleging therein that he works in Delhi and lives with his wife there. He has two daughters. The applicant who lives in the house of maternal uncle in the village, one day on getting a chance came to his house and finding his younger daughter alone committed rape upon her. She did not tell it to anyone. On 16.08.2023 when he came from Delhi then his daughter told him about the incident. The first information report has thus been lodged.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that there is no date & time of the alleged incident mentioned in the first information report. It is further argued that the victim in her statement recorded under Section 161 Cr.P.C. also does not state of any date & time of the incident but vaguely states of the incident being taken place around 4-5 months back. It is argued that the victim in her statement recorded under Section 164 Cr.P.C. states that there was physical relationship between her and the applicant out of her own consent. It is argued that as per the High School certificate the victim was aged about 17 years & 08 months at the time of lodging of first information report. It is argued that the prosecution case is totally vague. It is further argued that presuming the statement of the victim to be true which is recorded under Section 161 Cr.P.C., the incident of rape is alleged to have taken place around 4-5 months back but the first information report has been lodged later on which is after an inordinate delay. The applicant has no criminal history as stated in para 13 of the affidavit and is in jail since

20.08.2023.

¶6Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail.

¶7After having heard learned counsel for the parties and perusing the record, it is evident that date & time of the alleged incident of rape is not mentioned in the first information report. The victim states of the same to have been committed around 4-5 months earlier. The first information report is thus delayed by 4-5 months. There is no plausible explanation regarding the delay.

¶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-Gyasi @ Gaurav Ahirwar, 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 :- 8.12.2023 AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad