Raj Kumar v. State of U.P. and 3 Others

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52510 of 2023 Applicant :- Raj Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mukesh Joshi Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the present case. Learned counsel for the applicant further submits that with regard to an incident dated 31.07.2023 the F.I.R. was lodged on

09.08.2023 against the applicant and unknown persons alleging therein that when on the date of incident at about 10:00 p.m. minor daughter of the informant aged about 16 years was coming to her home the applicant along with two other persons while abusing and committing marpeet had kidnapped her and forcibly committed her rape, thereafter, they left her near Buddha Park in an unconscious state. Learned counsel for the applicant further submits that in her statement recorded under Section 161 Cr.P.C. has stated that she knew the applicant, on the date of incident applicant called her on phone, thereafter, the applicant came there along with two other persons on a motorcycle and took her and the applicant committed her rape. Learned counsel for the applicant further submits that in her statement recorded under Section 164 Cr.P.C. the victim has stated that she knew the applicant for the last one-two years, she loved him, on the date of incident on making call by the applicant on phone she reached at the plot, where applicant and two other persons were present, thereafter, applicant put two slaps on her and took her at any place where applicant committed her rape forcibly. Learned counsel for the applicant further submits that the F.I.R. has been lodged after a great delay of more than seven days without any plausible explanation from the side of prosecution, there are various contradictions in both the statements of prosecutrix as well in the statement of informant as well as in the F.I.R. which create doubt about the veracity of prosecution case. Learned counsel for the applicant further submits that medical evidence does not support the prosecution case as in her medical examination no internal or external injury found on the person of the victim, no dead or alive spermatozoa was seen on her vaginal smears, her hymen was found old torn and healed and as per the doctor's opinion sexual violence cannot be ruled out. Learned counsel for the applicant further submits that as per school leaving certificate of the victim she was aged about 17 years at the time of incident, thus, taking benefit of two years either side the victim is major. Learned counsel for the applicant further submits that victim in her statements had admitted that she knew the applicant and used to talk with him prior to the date of incident and on the date of incident at 10:00 hours in the night she went outside alone from her house to meet the applicant, 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 10.08.2023, having no criminal history.

¶3Per 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.

¶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-Raj Kumar, involved in Case Crime No. 596 of 2023, under Sections 323, 504, 363, 376-D I.P.C. read with Section 5G/6 of Protection of Children From Sexual Offences Act and Section 3(2)(V), 3(1)da, 3(1)dha of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) From Sexual Offences Act, Police Station Majhola, District Moradabad, 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 :- 14.12.2023 Mustaqeem. High Court of Judicature at Allahabad