Allahabad High Court
Gaffar vs State Of U.P. on 1 May, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:77536
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3994 of 2023
Applicant :- Gaffar
Opposite Party :- State of U.P.
Counsel for Applicant :- Ravindra Pratap Singh,Vishal Singh
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Ravindra Pratap Singh, learned counsel for applicant and Sri Mithilesh Kumar, learned AGA for State.
2. Applicant-Gaffar has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 200 of 2022, under Sections 342, 323, 376 IPC, Police Station Niwadi, District Ghaziabad.
3. This bail application was filed on 09.01.2023 and according to order sheet earlier it was listed for hearing on two dates, however, it was adjourned either due to absence of counsel for applicant or on his request.
4. Applicant is facing trial for offence of rape and he is in jail since 21.09.2022. As per charge sheet there are 13 proposed witnesses and till 24.04.2024 only one witness (PW-1, i.e., victim) was examined.
5. Learned counsel for applicant has referred the statement of victim mainly her cross-examination that she has denied entire prosecution case that she lodged FIR and made statement before Investigating officer and Magistrate under influence of Police. He further submits that on basis of nature of evidence against applicant before Trial Court, possibility of conviction appears to be very remote.
6. Learned AGA submits that examination-in-chief of victim was recorded on 24.08.2023 wherein she has completely supported case of prosecution, however, when she was cross-examined on 12.04.2024, i.e., after about more than seven months, she has resiled from her earlier statement and denied entire prosecution story, as referred above.
7. Supreme Court in various judgments has directed that statement of vulnerable witnesses, such as victim in present case, be recorded on day-to-day basis, except in exceptional circumstances. The object behind it is to avoid any chance of won over. As referred above, in the present case gap between examination-in-chief and cross-examination was more than seven months, which was utilized by accused side to won over the victim. Therefore, Trial Court concerned is directed to take note that such gap between examination-in-chief and cross-examination of vulnerable witnesses may not occur.
8. In aforesaid circumstances, considering nature of evidence at present before Trial Court that victim in her cross-examination has denied entire prosecution story and taking note of submission of learned counsel for applicant that on basis of such nature of evidence, possibility of conviction appears to be very remote, I am of the considered opinion that applicant has made out a case for bail.
9. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.
10. Let the applicant-Gaffar be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if 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 I.P.C.
(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
(v) Applicant will mark his presence on every alternate Saturday before concerned Police Station and in case of default, it may be a ground to cancel his bail.
11. The identity, status and residential proof of sureties will be verified by Court concerned and in case of breach of any of the conditions mentioned above, Court concerned will be at liberty to cancel the bail and send the applicant to prison.
12. The bail application is allowed.
13. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 1.5.2024
AK
