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

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52290 of 2023 Applicant :- Asim Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anwar Hussain Counsel for Opposite Party :- G.A.,Santosh Kumar Shukla Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Anwar Hussain, learned counsel for the applicant, Sri Santosh Kumar Shukla, learned counsel for the first informant, Sri Shree Krishna Tiwari, 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-Asim, seeking enlargement on bail during trial in connection with Case Crime No.496 of 2023, under Section 376 I.P.C. and 3/4 POCSO Act, registered at Police Station Narkhi, District Firozabad.

¶4The FIR of the present case was lodged on 28.10.2023 by Pravesh Kumar against the applicant alleging therein that his niece came to live at his house around 10-12 days back. On

27.10.2023 at about 3 p.m. she went to the market to purchase certain items. She is aged about 16 years. When she went to Vachgaon crossing in the market of general store, Asim, the accused who was having a shop there finding her alone, caught-hold of her hand and took her on the upper floor of the shop and closed the door and did wrongful act with her. She started shouting on which people of nearby came and took her out. She told it to him and then FIR has been lodged.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the medical examination does not support the prosecution case as the doctor did not find any injury either on the body or on the private part of the body. The doctor found her hymen to be present and did not give any opinion about rape on the victim. It is argued that subsequently the victim in her statement under Section 161 Cr.P.C. states of the applicant doing wrongful act on her. She, however, in her statement under Section 164 Cr.P.C. states of the applicant committing rape upon her. It is argued that in the supplementary medical examination report, the opinion of the doctor is that there is no definite opinion regarding sexual assault, as such the story of the prosecution has been improving and there is no corroboration of the same through medical evidence. The medical evidence does not show any rape being committed on the victim or there being any sexual assault on her. While placing para 14 and 15 of the affidavit, it is argued that the grounds mentioned therein go to show that the applicant has been falsely implicated. It has also been pointed out that the applicant is not having any criminal history as stated in para 15 of the affidavit. The applicant is in jail since 29.10.2023.

¶6Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the FIR, in the statement of the victim under Section 161 Cr.P.C. and 164 Cr.P.C. There are allegations against him, as such the prayer for bail be rejected.

¶7After hearing the counsel for the parties and perusing the record, it is evident that the prosecution version has been improving throughout. The medical examination report does not state of any sexual assault upon the victim. The examination of her private part also does not show any sexual assault on her.

¶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-Asim, 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. (Samit Gopal, J.) Order Date :- 11.12.2023 Gaurav Kuls High Court of Judicature at Allahabad