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Deepak vs State Of U.P. Thru. Prin. Secy. … on 2 January, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

?Neutral Citation No. – 2024:AHC-LKO:183

Court No. – 15

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 10735 of 2022

Applicant :- Deepak

Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others

Counsel for Applicant :- Sharvan Kumar Pandey,Nripendra Mishra,Upendra Kumar Singh

Counsel for Opposite Party :- G.A.

Hon’ble Mohd. Faiz Alam Khan,J.

1. During the course of deliberations learned counsel for the applicant has filed certified copies of statements of witnesses, namely, Bechulal and Ramraj recorded on 21.03.2003 and 31.10.2003 respectively in Case No.581 of 2001 pending in the Court of Judicial Magistrate, Shravasti, titled as ‘State Vs. Ram Bilas and others’ under Sections 323, 324 and 504 IPC lodged at Police Station Malhipur, District Shravasti pertain to Crime No.085 of 2001. The same are taken on record.

2. Perusal of record would reveal that as per communication sent by the C.J.M., Shravasti of date 15.10.2022 the complainant of the instant case has been sufficiently/personally served, however, he is not represented.

3. Heard counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

4. This bail application has been moved by the accused/applicant-Deepak for grant of bail in Case Crime No.0224 of 2022, under Section 377 IPC read with Sections 5m and 6 of the Protection of Children from Sexual Offences Act, 2012 lodged at Police Station Malhipur, District Shravasti, during trial.

5. Learned counsel for the accused-applicant, while pressing the bail application, submits that the applicant has been falsely implicated in this case and, he has not committed any offence, as claimed by the prosecution. Elaborating further, it is submitted that father of the applicant, namely, Ramraj was a witness in a criminal case, FIR of which was lodged by Bechulal against brother of the complainant, namely, Ram Bilas, and father of the applicant, namely, Ramraj had also appeared in that case and deposed as PW-2, reference in this regard has been made to the certified copies of statements placed before this Court for perusal and have been taken on record.

6. It is further submitted that in support of the allegations levelled in the FIR as well as in the statements of the victim recorded under Sections 161 and 164 CrPC there is no medical evidence. Attention of this Court has been drawn towards statement of doctor as well as injury report of the victim wherein no sign of unnatural intercourse has been found and the doctor, who has examined the victim, has stated that no definite opinion with regard to commission of unnatural intercourse with the victim could be given. It is further submitted that statements of the informant of the instant case as well as victim have been recorded before the trial Court wherein it is admitted by them that at the time of alleged incident blood was oozing from the private part of the boy and his garments were also blood-stained, however, no such garment was either given to the investigating officer or collected and a new case has been developed during the course of examination before the trial Court that the blood-stained garment was taken away by a street-dog. It is further submitted that the story, as cooked up by the prosecution, is false and could not be believed on the touch-stone of probability and, a boy of 5 years of age has been used in order to carve out a false case against the applicant. The applicant is languishing in jail in this case since 30.06.2022 and he is not having any previous criminal history and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

7. Learned A.G.A. opposes the prayer of bail of the applicant on the ground that the offence of unnatural intercourse against the order of nature has been committed with a boy of 5 years and, thus, considering gravity of the offence, the applicant is not entitled to be released on bail.

8. Having heard learned counsel for the parties and having perused the record, the case of the prosecution, as reflected from the FIR as well as from the statements of the victim recorded under Sections 161 and 164 CrPC, appears to be that on the relevant date and time the victim was taken by the applicant and other co-accused person to a lonely place where the victim was sodomized and on an alarm raised by him his father arrived and thereafter the FIR was lodged.

9. Admittedly, the alleged incident had occurred on 21.05.2022, however, the FIR could only be lodged on 24.05.2022 and it is highlighted by the learned counsel for the applicant with sufficient force that the delay has not been explained either in the FIR or in the statement of the witness recorded under Section 161 CrPC or before the trial Court where two star witnesses have been testified as PW-1 and PW-2. Emphasis has been given on the injury report of the victim wherein no abnormality has been found and no injury has been noticed by the doctor as also in the statement of Doctor Jagdish Prasad, who had examined the victim and stated that after 4 days of the alleged incident the boy was examined and he could not say with certainty as to whether the boy has been sodomized or not. The defence of the applicant appears to be that a boy of 5 years has been used by the informant with whom the applicant is having established enmity to carve out a false case against the applicant and also that there is no medical evidence in support of the allegations.

10. It is also worthwhile to highlight that during the course of examination of prosecution witnesses, namely, the victim and the informant it has been specifically stated before the trial Court that the boy was profusely bleeding at the time of alleged incident and he was treated by a local doctor and his garments were also blood-stained. Admittedly, blood-stained clothes of the victim have neither been given to the investigating officer nor have been produced before the trial Court. This Court is of the considered view that whenever allegations of grave nature are levelled, apart from statement given to the investigating officer, material/evidence collected in support of such allegation, should be considered and, plea of bail of an accused/undertrial, who is also carrying a presumption of innocent, should be considered on the basis of actual material/evidence which has been collected by the investigating officer with regard to the allegations. This Court is refraining itself from discussing in depth the merits of the case as the same may effect the course of trial but suffice is to say that having regard to the allegations levelled in the FIR as well as the material/evidence which has been collected by the investigating officer and the testimony of the informant and the victim recorded before the trial Court a case of bail is evidently made out in favour of the applicant, who is languishing in jail in this case since 30.06.2022 without any previous criminal antecedents and the presence of the applicant may be secured before the trial court by placing adequate conditions.

11. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.

12. Let the accused/applicant-Deepak, involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not make any contact with the victim, his family or any of the witnesses directly or indirectly or through any social platform e.g. whatsapp, facebook and Instagram etc. and violation of this condition alone will be a ground for the trial Court to cancel the facility of bail extended by this Court.

(ii) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

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

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

13. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

14. Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

15. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.

Order Date :- 2.1.2024MVS/-

 

 

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