Allahabad High Court
Manish vs State Of U.P. And 3 Ors. on 19 October, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13918 of 2021 Applicant :- Manish Opposite Party :- State Of U.P. And 3 Ors. Counsel for Applicant :- Pawan Kumar Pandey,Arvind Kumar,Rajesh Kumar Agnihotri,Santosh Srivastava Counsel for Opposite Party :- G.A.,Desh Raj Singh Yadav Hon'ble Shamim Ahmed,J.
List revised. None appears on behalf of complainant despite the name of Shri Desh Raj Singh Yadav, Advocate, is printed in the cause list on her behalf.
Pleadings are complete and have already been exchanged between the parties. The case is ripe up for hearing.
Heard Shri Arvind Kumar, the learned counsel for the applicant, Shri Sanjay Srivastava, the learned A.G.A. for the State and perused the record.
The applicant, Manish, has moved the present bail application seeking bail in Case Crime No. 341 of 2021, under Sections 354, 323, 376, 506 I.P.C. read with Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Mahmoodabad, District Sitapur.
Learned counsel for the applicant submits that applicant has falsely been implicated in the case. No such incident, as alleged by the prosecution, took place.
Learned counsel for the applicant further submits that initially F.I.R. was lodged under Section 354 I.P.C. read with Section 7/8 of Protection of Children From Sexual Offences Act, thereafter, when the statement of victim was recorded under Section 161 Cr.P.C. she has only levelled allegation of molestation against the applicant but there was no allegation of rape there, whereas in her statement recorded under Section 164 Cr.P.C. she took somersault by changing her version and made allegation of rape against the applicant.
Learned counsel for the applicant further submits that there is material contradiction in the statements of victim recorded under Sections 161 and 164 Cr.P.C. and in the version of F.I.R.
Learned counsel for the applicant further submits that initially victim has refused for her medical examination on 17.09.2021, which fact is apparent from Annexure-S.A.-3 of the supplementary affidavit dated 22.07.2022, but after recording of statements of victim under Sections 161 and 164 Cr.P.C. she got medically examined, wherein no external or internal injury found either on her private parts or on the entire body of the victim and the concerned doctor opined that there are no sign of use of force and no recent forceful penetration found. Copy of medical examination report of the victim has been filed as Annexure-S.A.-5 of the supplementary affidavit dated 22.07.2022. Thus, it has been argued that in absence of any positive evidence regarding commission of rape in the medical report of the victim the entire allegation of rape made by the victim in her statement recorded under Section 164 Cr.P.C. appears to be false, which has been made only with intention to defame the image of applicant. As per radiological report the age of the victim was 16 years, taking the benefit of two years either side, the victim is major, thus she knew consequences very well. The applicant has been falsely implicated in the present case due to ulterior motive, therefore, he may be enlarged on bail by this Court, sympathetically.
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-10 of the affidavit filed in support of the bail application. The applicant is in jail since 21.10.2021 and has already undergone a substantial period in detention. 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 applicant is involved in a heinous crime, therefore, his bail application may be rejected.
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 initially F.I.R. was lodged under Section 354 I.P.C. read with Section 7/8 of Protection of Children From Sexual Offences Act, thereafter, when the statement of victim was recorded under Section 161 Cr.P.C. she has only levelled allegation of molestation against the applicant but there was no allegation of rape there, whereas in her statement recorded under Section 164 Cr.P.C. she took somersault by changing her version and made allegation of rape against the applicant, thus there is material contradiction in the statements of victim recorded under Sections 161 and 164 Cr.P.C. and in the version of F.I.R.; the entire allegation of rape made by the victim in her statement recorded under Section 164 Cr.P.C. got demolished after her medical examination, wherein no external or internal injury found either on her private parts or on the entire body of the victim and the concerned doctor opined that there are no sign of use of force and no recent forceful penetration found; as per radiological report the age of the victim was 16 years, taking the benefit of two years either side, the victim is major, thus she knew consequences very well; and 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, Manish, involved in Case Crime No. 341 of 2021, under Sections 354, 323, 376, 506 I.P.C. read with Section 3/4 of Protection of Children From Sexual Offences Act, Police Station Mahmoodabad, District Sitapur, 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 :- 19.10.2022 Mustaqeem