Allahabad High Court
Manish Garg vs State Of U.P. on 3 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26455 of 2022 Applicant :- Manish Garg Opposite Party :- State of U.P. Counsel for Applicant :- A.C.Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Counter affidavit filed by learned A.G.A. in court today is taken on record.
2. Learned counsel for applicant does not wish to file any rejoinder affidavit to the aforesaid counter affidavit.
3. Heard Mr. A.C.Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
4. Perused the record.
5. Instant application for bail has been filed by applicant-Manish Garg seeking his enlargement on bail in Case Crime No. 0312 of 2021 under Sections 376 365, 342, 506 I.P.C., Police Station- Pilkhuwa, District-Hapur, during the endency of trial.
6. Record shows that in respect of an incident, which is alleged to have occurred on 25.06.2021 a delayed F.I.R. dated 28.06.2021 was lodged by first informant Harendra Kumar (Father of the prosecutrix) and was registered as Case Crime No. 0312 of 2021 under Sections 376 365, 342, 506 I.P.C., Police Station- Pilkhuwa, District-Hapur. In the aforesaid F.I.R. one person namely Farra has been nominated as solitary named accused.
7. The gravamen of the allegations made in the F.I.R is to the effect that named accused Frra telephonically informed the first informant that daughter of first informant namely Shalu will never return her house.
8. Subsequent to aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He examined first informant and other witness under Section 161 Cr.P.C., who have supported the prosecution story as unfolded in the F.I.R. The prosecutrix-Shalu was recovered on 04.07.2021. Thereafter, the statement of prosecutrix was recorded under Section 161 Cr.P.C. by Investigating Officer on the same day. Prosecutrix in her aforesaid statement has not supported the prosecution story. Thereafter, the prosecutrix was requested for her medication examination. The prosecutrix in her statement before the Doctor has departed her earlier statement recorded under Section 161 Cr.P.C. and implicated applicant for having committed sexual assault upon her. However, the Doctor, who examined the prosecutrix, did not find any sign on the body of prosecutrix so as to denote commission of sexual violence. The Doctor, however examined the prosecutrix opined as follows:
" Hymen - ruptured, Torn, healed"
9. Certain samples were taken from the body of the prosecutrix for pathological examination. However, result of the same was in negative.
10. Subsequent to above, statement of prosecutrix was recorded under section 164 Cr.P.C. wherein she reiterated her statement before doctor. During course of investigation Investigating Officer recovered ICSC Examination Certificate of the prosecutrix i.e High School Certificate wherein her date of birth is recorded as 13.02.1990. Ultimately, on the basis of above and other material collcted by Investigating Officer during course of examination, he submitted the charge-sheet dated 14.04.2022 whereby applicant Manish Garg and Gaurav have been charge-sheeted under Sections 376 365, 342, 506 I.P.C.
11. Learned counsel for applicant submits that applicant is innocent. Applicant is not named in the F.I.R. Medical evidence does not support the prosecution story as unfolded in the statement of prosecutrix before Doctor as well as her statements under Section164 Cr.P.C. He further submits that prosecution under Section 376 can be maintained even on the solitary statement of the prosecutrix but such statement must fall within the category of impeccable evidence. When a parallel is drawn between the statement of prosecutrix under Section 161 Cr.P.C., Statement before Doctor and her statement under Section 164 Cr.P.C. coupled with the fact that when the prosecutrix departed from her statement under Section 161 Cr.P.C. for which no explanation has been offered, the statement of prosecutrix cannot be said to be impeccable in nature. As such offfence complained of under Section 376 I.P.C. cannot be said to have been committed by applicant. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except present one. Applicant is in jail since 22.02.2022. As such, he has undergone more than eight months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. The charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during course of trial. On the cumulative strength of aforesaid, learned counsel for applicant submits that applicant is liable to be enlarged on bail
12. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. submits that in view of the statement of the prosecutrix given before Doctor as well as her statement under Section 164 Cr.P.C., no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant.
13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that medical evidence does not support the prosecution story and the applicant being not named in the F.I.R. as well as the prosecutrix being inconsistent in her statements under Section 161 Cr.P.C., before Doctor and under Section 164 Cr.P.C. for which no explanation have been offered but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
14. Accordingly, present application for bail is allowed.
15. Let the applicant-Manish Garg involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
16. 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 of applicant and send him to prison Order Date :- 3.11.2022 YK