Shiv Shankar Goutam vs State Of U.P.
2022 Latest Caselaw 20214 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4098 of 2020
 

 
Applicant :- Mustafa
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Dinesh Kumar,Lalji Prasad Shukla,Smt. Nalini Prakash Jain
 

 
Hon'ble Shamim Ahmed,J.

Supplementary affidavit filed by the learned counsel for the applicant is taken on record.

Heard Shri Nalini Jain, learned counsel for the applicant, Shri Diwakar Singh, learned A.G.A. for the State and perused the record.

The applicant, Mustafa, has moved the present bail application seeking bail in Case Crime No.112 of 2020, under Sections 376,504,506 I.P.C. and section 3/4 POCSO Act, Police Station Mishrikh, District Sitapur.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the present case due to enmity and property dispute. The applicant is relative of complainant and victim.There is a dispute of agricultural land of 25 Bigha, which was got mutated by the complainant in his wife's name. The applicant is son of co-sharer Yaseen and is contesting the case before civil court to get possession of the aforesaid disputed property and was doing pairvi of the case before court. Being aggrieved by this action, the complainant falsely implicated the applicant in the present case forwarding his daughter (victim) and the allegation of rape was levelled against the applicant in the FIR. The victim has also made allegation of rape against the applicant in her statements recorded under sections 161 and 164 Cr.P.C. Learned counsel for the applicant argued that the victim made allegation of rape against the applicant on the pressure created by her parents. There is material contradiction in the statements of the victim recorded under sections 161 an 164 Cr.P.C. and the version of FIR.

Learned counsel for the applicant further submits that the allegation of rape as levelled by the victim in her statements recorded under sections 161 and 164 Cr.P.C. and the version of FIR got demolished after perusal of the medical report of the victim as the doctor opined therein that there is no any sign of internal or external injury seen on private part of the victim nor any live or dead spermatozoa seen in vaginal smear slide and no definite opinion was given by the doctor regarding sexual assault. The complainant who is father of the victim has himself disclosed the age of the victim to be 16 years in the FIR. Thus taking the benefit of two years either side the victim appears to be major and she knew her consequences very well.

Learned counsel for the applicant further submits that the complainant (P.W.1) in his statement recorded before court below on 22.7.2022 stated that he neither witnessed the alleged incident nor reached on spot. He further stated that he had got mutated the agriculture land of 25 bigha in the name of his wife, in respect of which a case is going on before civil court, in which applicant was doing pairvi. He further stated that he falsely implicated the applicant in the present case due to the reason that the applicant may not do the pairvi of the said case. The victim (P.W.2) in her statement recorded before court below on 22-07-2022 has admitted this fact that there is a dispute of 25 bigha agriculture land which was got mutated by the complainant in the name of his wife. Thus the prosecution story appears to be false and fabricated.

Learned counsel for the applicant further submits that the applicant is in jail since 02.03.2020 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

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 pointed out that the accused is not having any criminal history and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. opposed the prayer for bail of the applicant and submitted that the applicant has committed rape with minor girl, hence the bail application of the applicant may be rejected.

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, 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, considering the fact that there is material contradiction in the statements of the victim recorded under sections 161 an 164 Cr.P.C. and the version of FIR; the medical report of the victim does not support the prosecution case as the doctor opined that there is no any sign of internal or external injury seen on the private part of the victim nor any live or dead spermatozoa seen in vaginal smear slide and no definite opinion was given by the doctor regarding sexual assault; as per the assertion made in the FIR the age of the victim was 16 years at the time of alleged incident, thus taking the benefit of two years either side the victim appears to be major and she knew her consequences very well; there appears force in the argument of the learned counsel for the applicant that the applicant has been falsely implicated in the present case as is evident from the statement of complainant recorded before court below on 22.7.2022, wherein he has stated that he has falsely implicated the applicant due to dispute of agriculture land of 25 bigha which was got mutated by him in his wife's name, regarding which a case is going on before court below in which the applicant was doing pairvi which the complainant does not want, this fact has also been admitted by the victim in her statement recorded before court below on 22.7.2022 and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh(supra) and Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

The prayer for bail is granted. The application is allowed.

Let the applicant, Mustafa, involved in Case Crime No. 112 of 2020, under Sections 376,504,506 I.P.C. and section 3/4 POCSO Act, Police Station Mishrikh, District Sitapur, be enlarged 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 fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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

(5) In case, the applicant misuses the liberty of bail 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.

(6) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(8) 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.

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 merit of the case.

Order Date :- 7.12.2022

GSY

Order Date :- 7.12.2022

GSY