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

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51840 of 2023 Applicant :- Mobin Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Dhiraj Kumar Pandey Counsel for Opposite Party :- G.A.,Atmaram Nadiwal,Dinesh Kumar Yadav Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State as well as 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 for the applicant further submits that as per the version of the F.I.R. in the night of incident the applicant entered into house of the informant and took his minor daughter aged about 17 years forcibly and committed her rape in a semi constructed house situated behind the house of informant. Learned counsel for the applicant further submits that in the F.I.R. it has further been alleged that when the victim was not found on her bed her mother told brother of informant, who on search when reached behind the house of informant he found the applicant with the victim and when he tried to catch the applicant the applicant assaulted him by a piece of wood. Learned counsel for the applicant further submits that there are various contradictions in the statements of witnesses with the version of F.I.R. The injury sustained to the brother of the informant is simple in nature. Learned counsel for the applicant further submits that though in her statements recorded under Sections 161 & 164 Cr.P.C. the victim has also made allegation of kidnapping and forceful rape against the applicant as has been made in the F.I.R., but in the medical examination of the victim no genital and physical injury found on the person of the victim, her hymen was found told torn and healed, and as per radiological report age of the victim was found about 17 years, thus, taking benefit of two years either side the victim is major. Learned counsel for the applicant further submits that as per the F.I.R. the incident took place on 09.08.2023 and the medical examination of the victim was conducted on

10.08.2023, which is prompt, but allegation of rape made by the victim is not supported by the medical evidence, 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 22.08.2023, 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-Mobin, involved in Case Crime No. 122 of 2023, under Sections 452, 376, 323, 307 I.P.C. and Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Chilkana, District Saharanpur, 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 :- 11.12.2023 Mustaqeem. High Court of Judicature at Allahabad