Imran vs State Of U.P.
2021 Latest Caselaw 2129 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 30
 

 
[Case :- BAIL No. - 12694 of 2019]
 

 
Applicant :- Imran
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Santosh Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Vikas Kunvar Srivastav,J. 

Called on.

Learned counsel Sri Santosh Kumar Srivastava, Advocate for the accused-applicant and learned Additional Government Advocate for the State are present.

The present bail application has been filed on behalf of the accused-applicant-Imran who is involved in Case Crime No. 100 of 2019, under Sections 366, 376, 511, 506 IPC, Police Station Malipur, District Ambedkar Nagar.

The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Sessions Judge, Ambedkar Nagar vide order dated 27.06.2019.

Counter and rejoinder affidavits between the parties of the case have already been exchanged. The case is ripe for hearing.

Heard learned counsel counsel for the parties and perused the material available on record.

Learned counsel for the accused-applicant, reading over the First Information Report, submitted that the brief prosecution story is that the daughter of the complainant on 15.05.2019 at about 3:00 a.m. in the night was called on to accompany the neighbour's wife, namely, Kesari Begam and her daughter Reshma Bano for going out in field for defecation. When she went out alongwith them, the accused persons Jhabalu @ Afroj and Saddam @ Rahul were already present alongwith their motorcycle. Saddam caught hold of the victim, the daughter of the informant, lifted her and rode on the back of the motorcycle. Jhabalu drove away the motorcycle. They reached at Malipur railway station where the present accused-applicant, the another neighbour of the victim and informant, namely, 'Imran' was present. He threatened the victim to keep mum and accompany them, otherwise to face the risk of life. They all taken away the victim with intention to commit rape. Meanwhile, the complainant alongwith his family members reached there as they were searching the victim at Akbarpur railway station. The accused persons fled away from the spot hurling threats of live and limb, if complaint is made anywhere else. So far as the version of the First Information Report is concerned, learned counsel submits that there is no allegation of rape.

Learned counsel further drew attention towards the statement of the complainant recorded by the Investigating Officer under Section 161 Cr.P.C where there is no difference from the version of the First Information Report. When the victim was interrogated by the Investigating Officer under Section 161 Cr.P.C., therein also no difference from the statement of the complainant as well as that made in the First Information Report. Additional statement by the Investigating Officer has also been recorded wherein for the first time the complaint as to the commission of rape by the accused persons including the present accused-applicant is levelled by the victim herself and again in the statement under Section 164 Cr.P.C. recorded on 10.06.2019, wherein the allegation as to the rape by all the three accused persons is made.

Learned counsel in connection with the improvement made in the additional statement recorded under Section 161 Cr.P.C. and statement under Section 164 Cr.P.C. before the court, of the victim, drew attention towards the medical examination report wherein the age of the victim is assessed 19 years, as well on medical examination, no external injury on the person of victim as well as on her private part is found.

In view of the aforesaid materials and facts, learned counsel submits that the original version in the First Information Report and that improved in the statement under Section 161 Cr.P.C. by the victim itself shows a contradiction. The accused-applicant is arraigned in the offence under Sections 366, 376, 511, 506 IPC. Prima facie, due to contradiction and improvement in the statements and also by reason of non-corroborated by medical evidence, the accused-applicant does not seem to be involved in the alleged offence of rape.

Learned counsel further submitted that the victim by her conduct seems to be a consenting party as in the night at about 3:30 a.m., she left the house and on the spot, the co-accused Jhabalu @ Afroj and Saddam @ Rahul were waiting her. It seems pre-planned by her also. She further met with accused-applicant-Imran. She was travelling with them from the village to railway station Malipur and thereafter Akabrpur where she was recovered by the complainant and family members who were searching her. She never made any cry for help or rescue, though all the places like railway stations and public roads cannot be presumed to be unpopulated and absence of people.

Protesting the bail plea, learned AGA submitted that from the statement of the victim before the court, the present accused-applicant alongwith other co-accused has committed rape with her which cannot be disbelieved in view of the statement of the victim herself. So far as the medical report is concerned, the medical report as to the lack of injuries on the person and private part of the victim, cannot overwrite the statement of the victim so as to treat the present accused-applicant as innocence.

After hearing the rival contentions of the parties and looking into the prima facie evidences as against the accused-applicant, without making any comment as to the complicity of the accused-applicant in the crime as well the merit of the case against him,  I find force in the submission of learned counsel. There is no criminal history or criminal antecedent stated against the present accused-applicant. He is one of the neighbour of the complainant and victim. He is not in a position to flee away from the process of the Court, therefore he should be given fair opportunity to participate in the trial and put his defecne properly.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Let applicant-Imran be released on bail in Case Crime No. 100 of 2019, under Sections 366, 376, 511, 506 IPC, Police Station Malipur, District Ambedkar Nagar, on his furnishing a personal bond worth Rs. 50,000/- (fifty thousand) and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

(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 during trial 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 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.

Order Date :- 9.2.2021

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[Vikas Kunvar Srivastav,J.]