Deepak v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50588 of 2023 Applicant :- Deepak Opposite Party :- State of U.P. Counsel for Applicant :- Sunil Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Sri S.D.Singh Jadaun and Sri Ashish Mishra, learned counsel has filed his power on behalf of the informant today in the Court, which is taken on record. Heard learned counsel for the applicant, learned A.G.A for the State, learned counsel for the first informant and perused the record.

¶2Learned counsel for the applicant submits that the incident is alleged to have taken place on 11.08.2023 whereas, the F.I.R. has been lodged on 14.08.2023 without there being any plausible explanation of such an inordinate delay. He further submits that the victim in her statement recorded under Section 161 Cr.P.C. has specifically stated that she is aged about 21 years and on 11.08.2023 at about 08:00 hours she was on the way to coaching, where the applicant met her and sniffed something due to which, she became unconscious and he took her somewhere and when she became conscious, she found herself in jungle and had committed rape with her, whereas the victim in her statement recorded under Section 164 Cr.P.C. has stated that two boys came and caught behind her and both of them have committed rape with her. Learned counsel further submits that the victim in her subsequent statement (Majeed Byaan) the on the question put by the Investigating Officer could not be answered by the victim that as to how she named the accused "Saurabh" and after while, she stated that the applicant was the sole person who had given rise to the incident. It has also been answered by the victim that she has gone with the applicant to Shiv Ganga Dhaba By-pass Khatauli, where she took breakfast and the applicant sniffed something, due to which she became unconscious and that the applicant had committed rape twice in the jungle. Learned counsel argued that the victim had stated in her first statement recorded under Section 161 Cr.P.C. that the applicant sniffed something when she was on the way to jungle whereas in her subsequent statement she has stated that the applicant sniffed something at Dhaba and thereafter the applicant had committed with her. Apart from the aforesaid, the victim has also introduced two persons in her statement recorded under Section 164 Cr.P.C. and ergo, considering the statements given by the victim from time to time, itself shows the false implication of the applicant in the present case. Learned counsel has drawn attention of this Court to the medico-legal report of the victim and has argued that there is no mark of external injury seen on the person of the victim. He has also argued that according to the supplementary report wherein it has been opined that no spermatozoa seen. It is thus argued that the medical report also does not corroborate with the prosecution version. It is thus contended that the applicant has been falsely implicated in the present case in view of the fact that the victim and applicant are having healthy relations and in this regard, learned counsel for the applicant has drawn attention of this Court to the photographs of the victim and the applicant clicked together, copy of which is annexed as Annexure-5 to the affidavit accompanying the bail application. 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

15.08.2022 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. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

¶4Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

¶5Let applicant Deepak involved in Case Crime No.346 of 2023 under Sections 376, 328, 506 I.P.C., Police Station Khatauli, District Muzzar Nagar be released 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 shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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. II. The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. III. In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code. IV. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶6Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 4.12.2023 S.Ali High Court of Judicature at Allahabad