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HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 72

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 16081 of 2021

Applicant :- Sharukh

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Amar Chandra

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Despite having received the notice, no one has put in appearance on behalf of the informant of the case.

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

By means of this application, the applicant Sharukh, who is involved in Case Crime No. 232 of 2020, under Sections 376, 506 IPC and 3/4 POCSO Act and 3(2)V of SC/ST Act, police station Utraon, district Prayagraj, is seeking enlargement on bail during the trial.

As per the prosecution version, in brief, the informant-Lalji, who is father of the victim lodged the first information report on 31.7.2020 for the offence under Section 354 IPC and 3(2)V of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, against the applicant.

The first argument of learned counsel for the applicant is that in the first information report, there is no allegation of rape against the applicant, whereas victim in her statement recorded under Section 161 Cr.P.C. made an allegation of forcible rape by the applicant and also stated that another boy was also there with the applicant, who also tried to commit rape upon her but after the arrival of victim’s father, they ran away. It is pointed out that when the statement of victim under Section 164 Cr.P.C. was recorded she has stated that there were three boys including the applicant and also made allegation of rape against the applicant.

On the strength of aforesaid facts, the main substratum of argument of learned counsel for the applicant is that there is inconsistency in the prosecution version and the F.I.R. as well as in the statements of the victim. The victim has made an improvement in her statement making allegation of rape, which is not corroborated by the medical report. It is also pointed out that as per the rediological examination report, the age of victim is above 16 years and below 18 years.

It is submitted by learned counsel for the applicant that the applicant is absolutely innocent has falsely been implicated in the present case with some ulterior motive. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. It is also submitted that the applicant has no criminal antecedent to his credit and is facing detention since 3.10.2020. 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 bail prayer of the applicant, but does not dispute that the prosecution version as mentioned in the F.I.R. has been changed by the victim in her statements recorded under Sections 161 and 164 Cr.P.C.

I have considered the submissions of the parties as also the fact that F.I.R. has been lodged by the father of the victim for the offence under Section 354 IPC and 3(2)V of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, whereas another story has been disclosed by the victim in her statements recorded under Sections 161 and 164 Cr.P.C., therefore possibility of false implication of the applicant in a crime cannot be ruled out. This Court is conscious that statement of victim is of primary consideration in the matter of rape, but it is equally true that no presumption can be drawn that victim always narrates the entire story truthfully.

In view of the above, I find it a fit case for bail.

Without expressing any opinion on the merits, let the applicant Sharukh involved in the aforesaid case, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-

(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 :- 27.7.2021

Sumaira