Allahabad High Court
Rajat @ Shivam vs State Of U.P. on 17 March, 2021
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42315 of 2020
Applicant :- Rajat @ Shivam
Opposite Party :- State of U.P.
Counsel for Applicant :- Mayank Yadav,Vivek Kumar Singh
Counsel for Opposite Party :- G.A.,Ch. Dil Nisar,Vinay Prakash Shukla
Hon'ble Ram Krishna Gautam,J.
Heard over bail application moved by applicant, Rajat @ Shivam, to release him on bail in Case Crime No. 607 of 2020, under Section-376 I.P.C. Police Station-Deoband, District-Saharanpur.
Heard learned counsel for the applicant and learned AGA representing the State. Perused the record.
Learned counsel for the applicant argued that the applicant is innocent. He has been falsely implicated in this very case crime number and is languishing in jail since 15.09.2020. He is of no criminal antecedent. First Information Report was got lodged on 26.08.2020 at about 19 p.m. by Hakim Ali for the offences punishable under Section 376D read with 3/4 POCSO Act, against two named accused Shivam @ Rajat and Ambrish. It was stated in it that on 26.08.2020 at about 8 a.m. Shivam @ Rajat and Ambrish did commit rape with prosecutrix on the gun point and prosecutrix was subjected sexual assault since two months back. For which there had been obscene video prepared by them and on the basis of same blackmailing was being made with a threat to get it viraled over net but, neither any report, for alleged rape said to be occurred two months back, was there nor any video clip is in existence nor any such threat was ever extended. Prosecutrix, who was said to be of 15 years has been held to be 19 years in medical age determination by medical board and is of 21 years in educational record. Though by way of Adhar Card an attempt was made to show her to be minor but, there are repeated judgment of Court that Adhar Card is not conclusive proof of age rather it is proof of address. Age is being entered in Adhar Card is without any conclusive proof of date of birth. Prosecutrix, who is major did not disclose her alleged previous sexual assault to her father or to police and this report of present occurrence of 26.08.2020 was delayed by ten hours. This alleged occurrence of rape is not with any support of medical evidence. Statement under Sections 161 and 164 Cr.P.C. are at variance and the investigating officer has not charge sheeted co-accused for whom there was statement for commission of rape then denial of rape hence, the applicant, who has been falsely implicated because of some dispute with regard to purchase of house and land is alleging since long. There is no likelihood of applicant's fleeing from course of justice or tempering with evidence, in case he is released on bail. Hence bail has been prayed for.
Learned AGA as well as learned counsel for the informant has vehemently opposed with this contention that investigating officer was in connivance with accused and in counter affidavit, filed by the informant, this has specifically been mentioned that video clip was not made part of case diary and there was every attempt by investigating officer to help the accused as a result of which no charge sheet against one accused has been filed. Sexual exploitation by the applicant since last two months is there and call detail recording has been made part of case diary for these two months only. Prior to it there is no CDR. Whereas, this period was said to be a period of sexual exploitation by accused applicant. There is every likelihood of tampering of evidence in case of release on bail, hence bail is liable to be rejected.
Having heard learned counsel for both the parties, gone through the material placed on record, and from the very perusal of the First Information Report, it is apparent, that the present occurrence of 26.08.2020 was said to be in continuation of sexual assault made two months back and persistent rape was there but, prior to registration of this case crime number no report was lodged or protest was ever raised. Prosecutrix is major. Applicant is of no criminal antecedent. Considering all those facts and circumstances of the case, the nature of accusations, severity of the punishment in the case of conviction but without expressing any opinion on the merits of the case, this Court is of the view that the applicant may be enlarged on bail with certain conditions.
Let the applicant, Rajat @ Shivam, involved in above mentioned case crime number be released on bail on his executing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
1. The applicant will not tamper with the evidence.
2. The applicant will not indulge in any criminal activity.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned.
In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail.
Order Date :- 17.3.2021
Deepak/
