Allahabad High Court
Bittu vs State Of U.P. And 3 Others on 18 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12088 of 2022 Applicant :- Bittu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anjani Kumar Raghuvanshi Counsel for Opposite Party :- G.A.,Ram Kumar Yadav Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Anjani Kumar Raghuvanshi, learned counsel for the accused-applicant, Shri Ram Kumar Yadav, learned counsel for opposite party no.2/informant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Bittu for grant of bail, in Case Crime No. 408 of 2021, under Sections 376-D, 323 I.P.C. and Section 3/4 POCSO Act, Police Station Parikshitgarh, District Meerut, during trial.
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.
It is further submitted that applicant was not named in the F.I.R. and in the F.I.R. specific allegations have been levelled against co-accused Shubham.
It is next submitted that in the statement of the prosecutrix recorded under Section 161 Cr.P.C. she has imputed all the allegations against co-accused Shubham and so much so in the statement given to the doctor during the course of medical examination she has attributed the allegation of rape to co-accused Shubham. However, no injury of any kind has been noticed on the person of the prosecutrix. In the statement of the prosecutrix recorded under Section 164 Cr.P.C. for the very first time the role of the applicant was introduced and the whole story has been turn turtled by stating that when she left for her school she met with the co-accused Shubham and accompanied him on his motorcycle and she was taken to a 'tubewell' where the instant applicant was already present, who took out a country made pistol and threatened her, thereafter, she was taken inside the tubewell where the co-accused Shubham had committed rape while the instant applicant Bittu had made the video and at the same time her maternal uncle arrived who was assaulted by the applicant and co-accused Shubham.
Highlighting the above facts, it is vehemently submitted that it was the prosecutrix herself who had lodged the first information report and the instant applicant was not named therein. In her statement recorded under Section 161 Cr.P.C. there was no mention of the applicant and after 10 days of the recording of statement under Section 161 Cr.P.C. the applicant has been introduced and the role has been assigned of making a video in her statement recorded under Section 161 Cr.P.C. However, the theory which has been specifically developed by the prosecutrix is belied by the fact that no video clip has been seized during the course of investigation and in the statement of the maternal uncle of the prosecutrix, who is also an injured witness, it is stated that the prosecutrix was found in the inner room of the tubewell along with the co-accused Shubham and the instant applicant Bittu was outside the tubewell room and it was the applicant who had opened the tubewell room from outside wherein the co-accused Shubham and the prosecutrix were found.
It is also submitted that applicant is in jail in this case since 14.01.2022 and he is not having any previous criminal history. Charge-sheet in this case has already been submitted 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.
Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed heinous offence and, therefore, he is not entitled to be released on bail.
Shri Ram Kumar Yadav, learned counsel for opposite party no.2/informant vehemently submits that the applicant was a close associate of the main accused Shubham and he was involved not only in threatening the prosecutrix but also of filming an obscene video and having regard to the evidence/material available against him, he is not entitled to be released on bail.
Having heard learned counsel for the parties and having perused the record, it is evident that the first information report of this case was lodged by none other than the prosecutrix herself wherein there was no whisper of the instant applicant and the whole illegal act was attributed to the co-accused Shubham. In her statement recorded under Section 161 Cr.P.C. also the prosecutrix has supported the version of the F.I.R., however, it was in the statement of the prosecutrix recorded under Section 164 Cr.P.C., the role of the applicant has been introduced for the very first time that too of only making a video and of threatening her with the country made pistol. The maternal uncle of the prosecutrix is stated to be injured in the incident as he followed the prosecutrix to the tubewell of the applicant, however, the statement of the maternal uncle of the prosecutrix would reveal that the instant applicant was found outside the tubewell room and the co-accused Shubham along with the prosecutrix was found in the inner room of the tubewell. No video clip has been provided either by the prosecutrix or by anyone on her behalf to the investigating officer. Applicant is in jail in this case since 04.01.2022 without any criminal antecedents. Charge-sheet in this case has also been submitted and the presence of the applicant could be secured before the trial court by placing adequate conditions.
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.
Let the accused/applicant- Bittu 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 tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
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 :- 18.5.2022 Praveen