Ram Prakash vs State Of U.P. And Another
2022 Latest Caselaw 1434 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38256 of 2021
 

 
Applicant :- Ram Prakash
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Santosh Kr. Singh Paliwal
 
Counsel for Opposite Party :- G.A.,Banshi Lal
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Santosh Kumar Singh Paliwal, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record. Despite service of notice upon first informant, no one has appeared on behalf of first informant.

The present bail application has been filed on behalf of applicant Ram Prakash under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 207 of 2021 for offence punishable under Sections 376, 506 of the Indian Penal Code and Section 3/4 of Protection of Children From Sexual Offences Act, 2012 registered at Police Station- Maharajganj, District- Azamgarh, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (POCSO Act), Azamgarh vide order dated 13.08.2021.

Brief facts of the present case are that the first information report dated 10.07.2021 has been lodged by the victim against the applicant stating therein that the applicant raped the victim by dragging her to a sugarcane field about six months ago, due to which, she became pregnant and she is about 17 years old. The applicant threatened the victim with dire consequences, if she would tell anything to anyone.

After lodging of the first information report, the statement of the victim was recorded under Section 161 of Cr.P.C. on 11.07.2021; medical examination was conducted on 13.07.2021; the statement of the victim was recorded under Section 164 Cr.P.C. on 28.07.2021. After recording the statement of the aunt of the victim and another prosecution witnesses under Section 161 of Cr.P.C., the Investigating Officer has submitted charge-sheet on 11.09.2021. The applicant was arrested on 13.07.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to enmity of land dispute. It is further submitted that as per the medical report dated 13.07.2021, a fetus of 6 to 7 months was found. It is further submitted that victim was unmarried girl at the time of lodging of the first information report. It is further submitted that the father of the applicant was lodged an F.I.R. dated 10.07.2021 under Sections 147, 323, 504 of I.P.C. against the father of the victim and 5 others named persons due to enmity of land dispute. It is further submitted that on the basis of lodging of the F.I.R. by the father of the applicant, present F.I.R. has been lodged on the basis of false and frivolous allegations. It is further submitted that it is highly improbable that 6 to 7 months pregnant girl was seen only on 11.07.2021. It is further submitted that during trial father of the victim and aunt of the victim have turned hostile and they have not supported the prosecution version. It is further submitted that the victim has not supported the prosecution case in her cross-examination before the trial court.

It is next argued that applicant has explained the criminal history of one case being Case Crime No. 128 of 2019, under Sections 147, 323, 336, 504 of I.P.C., P.S. Maharajganj, District Azamgarh, in his supplementary affidavit, in which no notice/summons was served to the applicant. He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) The first information report has been lodged by the after 6 months of the incident;

(b) At the time of lodging of the F.I.R. victim was pregnant 6 to 7 months;

(c) Before one day of lodging of the present F.I.R., father of the applicant has lodged an F.I.R. against the father of the victim;

(d) Except the statement of the victim recorded under Sections 161 and 164 of Cr.P.C., there is no other evidence against the applicant;

(f) Father of the victim and aunt of the victim have turned hostile and they have not supported the prosecution version;

(g) The victim has not supported the prosecution case in her cross-examination before the trial court;

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Ram Prakash be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 26.4.2022

Ishan