Allahabad High Court
Sandip Dubey @ Monu vs State Of U.P. on 3 August, 2018
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 48
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27216 of 2017
Applicant :- Sandip Dubey @ Monu
Opposite Party :- State Of U.P.
Counsel for Applicant :- Rupak Chaubey,Vinay Saran
Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
This is the second bail application of applicant and first bail application of the applicant has been rejected on 23.03.2017.
At the very outset counsel for the applicant submitted that first bail application of the applicant was rejected on 23.03.2017 and since then no evidence has been produced in the Court and the applicant is behind the bars since 20.01.2017. It has also been submitted that non production of witnesses in the case is resulting in procrastination of the trial and in such circumstances the matter deserves to be heard on merits by this Court. Learned A.G.A. also has admitted that since the rejection of first bail of applicant, no further evidence has been produced in the Court and he has no objection if the bail matter of applicant be heard on merits.
Heard Shri Anand Prakash Srivastava, learned counsel appearing for applicant and learned A.G.A. and also perused the record.
Submission of counsel for the applicant is that according to the medical examination the age of the victim girl has been found to be about 18 years and she was fully grown up major girl at the time of incident. Further submission is that though the parents have tried to show the age of the girl a little on lower side but certainly the victim had reached the age of discretion and even according to the documents she was just approximating the age of majority at the time of incident. Counsel has drawn attention of the Court to medical examination of the victim showing that no injury at all was found on her body and no bleeding was seen in her private part. According to counsel the normal state of hymen of the girl as has been found and specifically noted by the doctor in the medical examination and the feature of her vagina admitting one finger only are strong circumstances to prove that she was still a virgin and she was not subjected to any sexual intercourse. Submission is that though initially the charge sheet was submitted u/s 376 I.P.C. but later on the same was challenged and as a result thereof the charges eventually were framed only under Sections 363 and 366 I.P.C. Counsel has further drawn attention of the Court to the statement of the victim given before the Investigating Officer, in which the story, as has been proffered by the victim, appears to be that some intoxicating thing was administered to her and it was under its sedative effect that she was then kidnapped and was taken to distant places in order to have marriage with her. Submission is that the evidence on record and the victim's statement reveal that she remained with the accused-applicant for many days and during that period she was taken from Varanasi to Allahabad and she also travelled by train. Thereafter she was taken by train to Agra and then she was brought back to Varanasi from where she was apprehended. It has been emphasized by the counsel that the statement of the victim given before the Magistrate u/s 164 of Cr.P.C. would go to indicate that during this period when she remained with applicant, she was also given the occasion to talk to her parents, which by itself is a sure indication that there were no malicious intentions on the part of applicant against the victim and it was simply a case of a love affair. Contention is that it sounds highly improbable to suggest that a girl of this age can be taken to hundreds of kilometers in most crowded places by public transportation like train in a state of sedation and she would not get any occasion either to resist or to protest or to raise any alarm, unless she herself was a willing party and had left her house on her own volition willfully. Emphasis was also laid on the fact that the complete absence of any sexual assault made upon the victim is also a proof of genuine intentions of applicant. Submission is that actually the parents did not agree with this relationship and because of disagreement the applicant has been falsely implicated in the case. It has been also submitted that the victim is living safely with her parents and that other two co-accused have already been released on bail. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has 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. It has also been submitted that the applicant is in jail since 20.01.2017 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. It has also been pointed out that the applicant does not have any criminal history.
Learned A.G.A. has opposed the bail of the applicant but did not dispute the aforesaid factum.
After 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, specially keeping in view the dropping of the charge u/s 376 I.P.C., the event of no substantial progress in trial, complete absence of any injury on the genitals, complete absence of any such feature which could indicate sexual exploitation of the girl, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial 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.
Let the applicant-Sandip Dubey @ Monu, involved in S.T. No.160 of 2017 arising out of Case Crime No.142 of 2012, u/s 363, 366 I.P.C., P.S.-Rohaniya, District-Varanasi be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 3.8.2018
M. Kumar
