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Mohammad Mahmood vs State Of U.P. on 20 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 72

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 37906 of 2020

Applicant :- Mohammad Mahmood

Opposite Party :- State of U.P.

Counsel for Applicant :- Kamal Dev Rai,Shiv Prakash

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.

The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 622 of 2018, under Sections 376, 328, 506 I.P.C., Police Station-Sahibabad, District-Ghaziabad during the pendency of trial.

As per the prosecution case in brief, victim lodged F.I.R. on 22.03.2018 regarding an alleged incident that took place on 17.03.2018 for the offence under Section 376, 328, 506 I.P.C. against the applicant and his unknown friend making allegation that the accused persons sexually abused her on the pretext of giving a job. F.I.R. also alleges that she is resident of E-90, J.J. Colony, Vazirpur, Delhi. 10 to 15 days back she was waiting for bus at Laxminagar bus stand Delhi, where applicant met her and started talking. He asked the victim about her problem then she replied that she is unemployed and she is not educated, therefore, she used to work of cleaning etc. in the house. Thereafter he called her on 17.03.2018 at about 4:00 p.m. On reaching the victim on the said date, she was taken in a car to Pasuanda, Ghaziabad. Near Shalimar garden on the way one person also sat in the car, to whom he disclosed that he is a friend. F.I.R. also alleges that on the way they after mixing something in cold drink gave her to drink. After drinking the same she became unconscious and they have made physical relation with her by force and given Rs. 5,000/- to her and said that there is no need to work in any house and in case she will obey their direction she will earn a lot.

It is argued by learned counsel for the applicant that F.I.R. has been lodged on false and concocted facts. In medical examination report no mark of injury has been found at any part of body of the victim and doctor opined that no different opinion can be given about rape. It is next submitted that victim in her statements under Section 161 and 164 Cr.P.C. has made a false allegation of rape against the applicant. Much emphasis has been given by the learned counsel for the applicant by contending that victim in F.I.R., as well as in her statements has disclosed her addressed E-90, J.J. Colony, Vazirpur Delhi, but when investigating officer reached there he found that said addressed does not belongs to the victim and she never lived at the said address as disclosed by owner of the house situated at the said place. It is also stated that applicant has a business rivalry with one Shahid Siddique, therefore, there is every possibility of false implication of the applicant by Shahid Siddique hiring the victim utilizing his money power. In support of this contention he has pointed out that in the year 2004, he was also implicated in similar manner by getting an F.I.R. No. 113 of 2004 under Section 341, 354, 323 I.P.C. at P.S. Shakerpur, Delhi, in which also no person with the name of complainant was found residing at the given address despite the process issued to complainant by the Court, therefore, applicant and other co-accused were acquitted vide order dated 25.06.2010 of Karkardooma Courts, Delhi. Copy of said order has been appended as Annexure No. 7 to the bail application. Regarding F.I.R. No. 537 of 2016, under Section 376 I.P.C. against the applicant Mohd. Mahmood, learned counsel for the applicant has also placed the order dated 19.01.2017 (appended as Annexure No. 8) passed by High Court of Delhi by contending that in the said case also applicant was falsely implicated by Shahid Siddique, wherein the alleged victim of the same case has stated before the court that she has made the said complaint as drafted by Shahid Siddique and she was not aware that allegation of rape has been made against the petitioner (applicant in this case) in the said complaint. She had been prompted to make said complaint against the petitioner by Shahid Siddique by providing, inter alia, her financial support. Under the circumstances F.I.R. of the said case was quashed by High Court of Delhi. Applicant is law abiding person and is in jail since 27.07.2020. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.

Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that there is allegation of rape in the F.I.R. as well as in the statements of the victim against the applicant, but does not dispute that the victim is not traceable at the given address and the said address belongs to another person, namely, Rohit. Learned A.G.A. also does not dispute the aforesaid order dated 25.06.2010 and 19.01.2017.

After having heard learned counsel for the applicant as well as learned A.G.A., I find that it is admitted case that applicant was not known to the victim. It is the case of prosecution that it was a coincident that applicant met her at the bus stand, but in the F.I.R. victim has given the detail of applicant mentioning his father’s name and address. From the entry made by the investigating officer in the case diary it is clear that victim was not traceable at the given address. Apart from this considering the facts of the order dated 25.06.2010 and 19.01.2017 as mentioned above, possibility of falsely implication of the applicant in the present case cannot be ruled out. This Court is conscious of the fact that in the matter of rape, the statement of prosecutrix should be given primary consideration but equally it is also true that nowadays no presumption can be drawn that a prosecutrix would always tell the entire story truthfully. Considering the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.

Let the applicant Mohammad Mahmood 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 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 court. 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) 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. 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.

(iv) 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 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 against him in accordance with law.

(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.

(vii) 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 is clarified that anything said in this order is 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.

Order Date :- 20.7.2021

Sunil Kr. Gupta

 

 

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