Allahabad High Court
Gulfam S/O Gaffar Ali vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 3 December, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6365 of 2022 Applicant :- Gulfam S/O Gaffar Ali Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Amrit Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
Vide order dated 21.06.2022 a direction was given to issue notice to the respondent No.2 and learned A.G.A. was also directed to take steps to serve respondent No.2 with in one week.
Learned A.G.A. has filed the counter affidavit and annexed the copy of the information given to the complainant regarding moving of bail application by the applicant as CA-1.
None has appeared on behalf of the opposite party no. 2 nor any counter affidavit has been filed.
In reply to the counter affidavit filed by the learned A.G.A., learned counsel for the applicant has already filed the rejoinder affidavit.
Pleadings have been exchanged between the parties and are already on record.
Heard Sri Rashid Khan, learned counsel for the applicant and Sri Diwaker Singh, learned A.G.A. for the State and perused the record.
The applicant, Gulfam, has moved the present bail application seeking bail in Case Crime 136/2022, under Sections 363, 342, 376D, 506, 34 I.P.C. and Section 5 (G)/6 POCSO Act, Police Station Mohammadpur Khala, District Barabanki.
Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the present case due to village party bandi and enmity. The entire allegation as levelled in the F.I.R. as well as in the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. is false and fabricated only with the intention to defame the image of the applicant and his entire family in the society.
Learned counsel for the applicant submits that in the F.I.R. the complainant has stated that the co-accused Akhlaq has committed rape with her daughter and there was no any allegation against the applicant.
Learned counsel for the applicant further submits that the prosecutrix in her statement recorded under Section 161 Cr.P.C. made an allegation of committing rape against Akhlaq, but has not made allegation of rape against the applicant and only role of catching hand is assigned, whereas in her statement recorded under Section 164 Cr.P.C. she changed her version and allegation of rape was assigned to the co-accused Akhlaq, but the role of the applicant was assigned only helping the co-accused Akhlaq, thus there is no allegation of rape against the applicant and only his role was that he was helping and was in association with the co-accused Akhlaq.
Learned counsel for the applicant further submits that the allegation of rape is also not supported by any medical evidence against the applicant or any other co-accused named in the F.I.R., as the doctor in his report has opined that there is no any internal or external injury found on the person of the prosecutrix or on her private part. Further, there was no any complaint of pain or any other injury seen at the time to examination, thus the doctor has not given any definite opinion regarding commission of rape, even though there is no allegation of rape against the applicant by the prosecution or by the complainant, if any allegation is there that is only against co-accused Akhlaq.
Learned counsel for the applicant further submits that there is a political rivalry between the parties, that's why the applicant has been falsely implicated in the present case due to enmity and village party bandi. This fact has been stated by the applicant in para 12 of the affidavit filed in support of the bail application. He further submits that the prosecutrix is minor but there is no any allegation against the applicant regarding commission of rape either by the complainant or by the prosecutrix.
Several other submissions regarding legality and illegality of the allegations made in the F.I.R. have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused, have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that the applicant is not having any criminal history, which fact has been stated in para-19 of the affidavit filed in support of the bail application. The applicant is in jail since 09.04.2022 and in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.
Learned A.G.A. opposed the prayer for bail and submits that the bail applicant of the applicant be rejected as the prosecutrix is minor.
After perusing the record in the light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that in the F.I.R. the complainant has stated that the co-accused Akhlaq has committed rape with her daughter, but has not levelled any allegation against the applicant; there are material contradiction in the statement of prosecutrix recorded under Sections 161 and 164 Cr.P.C.; the prosecutrix in her statement recorded under Section 161 Cr.P.C. made an allegation of committing rape against Akhlaq, but has not made allegation of rape against the applicant and only role of catching hand is assigned, whereas in her statement recorded under Section 164 Cr.P.C. she changed her version the role of the applicant was assigned only helping the co-accused Akhlaq; the allegation of rape is also not supported by any medical evidence against the applicant or any other co-accused named in the F.I.R., as the doctor in his report has opined that there is no any internal or external injury found on the person of the prosecutrix or on her private part. Further, there was no any complaint of pain or any other injury seen at the time to examination, thus the doctor has not given any definite opinion regarding commission of rape, there appears force in the argument of learned counsel for the applicant that no role has been assigned to the applicant regarding commission of rape either by the complainant or by the prosecutrix as well as considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.
The prayer for bail is granted. The application is allowed.
Let the applicant, Gulfam involved in Case Crime 136/2022, under Sections 363, 342, 376D, 506, 34 I.P.C. and Section 5 (G)/6 POCSO Act, Police Station Mohammadpur Khala, District Barabanki be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(5) In case, the applicant misuses the liberty of bail 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.
(6) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
(8) 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 may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.
Order Date :- 3.12.2022 Arvind