Allahabad High Court
Manish Kumar Gaur vs State Of U.P. And 3 Others on 28 February, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7236 of 2023
Applicant :- Manish Kumar Gaur
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Yadvesh Yadav
Counsel for Opposite Party :- G.A.,Ramji Singh Patel
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Learned A.G.A. has informed that the notice has been served to the informant on 19.02.2023.
3. Heard Shri Yadvesh Yadav, learned counsel for the applicant as well as Shri R.P. Patel, learned A.G.A. for the State and perused the record.
4. Applicant seeks bail in Case Crime No.124 of 2022, under Sections 354, 452, 376 I.P.C. & Section 5?/6 of POCSO Act, Police Station Chitaipur, District Varanasi, during the pendency of trial.
5. As per prosecution story, the informant got an information from his brother that there was someone in the room of his daughter. When the informant opened the door, he found the applicant in the room outraging the modesty of his minor daughter. On seeing the informant, the applicant is stated to have run away from the scene of occurrence on 07.10.2022 at about 3:00 AM.
6. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. The victim is a consenting party. To buttress his arguments, learned counsel has placed much reliance on the statement of the victim recorded u/s 164 Cr.P.C. whereby she had stated that she had entered into corporeal relationship with the applicant on the pretext of marrying each other. It is also an admitted fact that the applicant used to live in the village in the house of his relative aunt. Learned counsel has further stated that as per school certificate, the date of birth of the victim is stated to be 12.05.2005, which falls just below the age of majority of 18 years and a leverage of two years may be granted to the applicant on the upper side. The FIR has been instituted by the informant after having seen the said act as is evident from the statement recorded u/s 164 Cr.P.C. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 08.10.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
7. Per contra, learned A.G.A., has vehemently opposed the bail but could not dispute the fact that the victim is a consenting party.
8. In rebuttal, learned counsel for the applicant has placed much reliance on the settled case law of the Apex Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below than their actual age.
9. Learned counsel for the applicant has further placed much reliance on the judgments of Apex Court passed in case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in 2019 (9) SCC 608 and Ansaar Mohammad vs. State of Rajasthan and Another, reported in 2022 SCC OnLine SC 886, wherein it has been stated that entering into any kind of corporeal relationship with a person on the pretext of getting married cannot be termed as rape.
10. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
11. Let the applicant- Manish Kumar Gaur involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
(i) The applicant will not tamper with the evidence during the trial.
(ii). The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
(v) 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.
12. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
13. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 28.2.2023
Ravi Kant
