Amit Kumar vs State Of U.P. And Another
2022 Latest Caselaw 1692 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37393 of 2021
 

 
Applicant :- Amit Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Saurabh Kumar Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Saurabh Kumar Pandey, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record. Despite service of notice upon the first informant, none has appeared on behalf of the first informant.

The present bail application has been filed on behalf of the applicant Amit Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 164 of 2020 for offence punishable under Sections 376 (3), 323, 506 of the Indian Penal Code and Sections 3/4(2) Protection of Children from Sexual Offices Act registered at Police Station Sadh District Kanpur Nagar during pendency of the trial, after rejecting the bail application of the applicant by the Additional Sessions Judge/ Special Judge POCSO Act, Court No. 13, Kanpur Dehat vide order dated 14.07.2021.

Brief facts of the case are that the First Information Report dated 09.07.2021 has been lodged by the maternal-grand-mother of the victim stating therein that her grand-daughter, minor girl aged about 15 years being a student of 9th class is residing with her maternal house and on 29.06.2020 her grand-daughter alone had gone to defecate her in the field. While she was going back after defecating herself, applicant pounced her from back after pressing her mouth and dragged her into orchard garden of eucalyptus and forcibly raped her sitting on her chest warning not to disclose it to any one. Moreover, at that time, her grand-daughter tried her level best to cry but due her neck being choked, her voice could not be audible. After the aforesaid incident her grand-daughter used to live in fear and despair. On pressure being put by her maternal-grand -mother to reveal the reason behind her silence, she revealed everything to her maternal-grand-mother.

After lodging the first information report, Medical examination of the victim was also conducted on 09.07.2020, statement of the victim under 161 Cr.P.C. was recorded on 10.07.2020. Ossification Test was conducted on 15.07.2020. Statement of the victim under Section 164 Cr.P.C. on 26.08.2020 after about one month and 15 days of the incident. After recording the statements of prosecution witnesses, charge sheet has been filed against the applicant on 09.04.2021. The applicant surrendered on 07.04.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicant filed an application under Section 156 (3) Cr.P.C. on 20.06.2020 against the maternal-uncle and father of the victim on 20.06.2020 for registration of F.I.R with regard to incident dated 15/16.06.2020 for the offence punishable under Sections 380 and 457 of the I.P.C. It is further submitted that incident in question took place due to enmity of election of Pradhan of village, Copy of the said application under Section 156 (3) Cr.P.C. is being filed and marked as R.A.-1 to the Rejoinder affidavit. It is further submitted that F.I.R. in question has been lodged after 11 days of the incident. It is further submitted that as per school certificate, age of victim is 15 years while as per Ossification Test dated 15.07.2021, age of the victim is 18 years. It is further submitted that as per medical examination of the victim, no external injury was found on the body of the victim which was conducted after 11 days of the incident. It is further submitted that on 28.06.2020 when the applicant was travelling by Auto at about 3.30 pm. which met with an accident by another vehicle coming from opposite direction in which the applicant sustained injury on his right leg.

He has next argued that the applicant has no criminal history to his credit. If the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA 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 FIR 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 applicant is neighbor of the first informant and the victim is residing at the house of her maternal-grand-mother;

(b) as per school certificate, age of the victim is 15 years while as ossification test, age of the victim is 18 years ;

(c) Incident took place on 29.06.2020; F.I.R. has been lodged on 09.07.2020; medical examination of the victim was conducted on 09.07.2020; statement of victim under Section 164 Cr.P.C. recorded on 26.08.2020, charge-sheet has been submitted on 09.04.2021 and the applicant surrendered on 07.04.2021;

(d) applicant filed an application under section 156 (3) Cr.P..C. for lodging F.I.R. against maternal-uncle and father of the victim for the offience punishable under Sections 380, 457 I.P.C with regard to incident dated 15/16.06.2020.

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, Amit Kumar 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 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/endeavour 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 :- 28.4.2022

aks