Allahabad High Court
Chaman vs State Of U.P. And 3 Others on 12 May, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:104417 Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16864 of 2023 Applicant :- Chaman Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ashutosh Mishra,Shailendra Kumar Ojha Counsel for Opposite Party :- G.A.,Namit Kumar Sharma Hon'ble Sameer Jain,J.
1. Supplementary affidavit filed on behalf of applicant is taken on record.
2. Heard Sri Shailendra Kumar Ojha, learned counsel for the applicant, Sri Vimal Kumar Verma, holding brief of Sri Namit Kumar Sharma, learned counsel for the informant and Dr. S.B. Maurya, learned A.G.A.-Ist for the State.
3. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 758 of 2022, under Sections 376, 452 IPC and section 3/4 POCSO Act, Police Station Kosikala, District Mathura, during pendency of the trial in the court below.
4. F.I.R. of the present case was lodged against applicant and two others and three unknown persons under Sections 147, 452, 354, 363, 506 IPC and 7/8 POCSO Act and according to the F.I.R. on 26.8.2022 in the mid night applicant and two named accused persons entered in the house of the informant and tried to outrage the modesty of minor daughter of the informant and thereafter they returned and on 27.8.2022 the minor daughter of the informant went out side of her home but did not return and at about 4 p.m. in the evening she was found in unconscious state and on query she informed the informant that applicant and other accused persons abducted her and due to the fear of accused persons she is not providing complete details of the incident.
5. Learned counsel for the applicant submits entire allegations made against the applicant is totally false and baseless and applicant never entered in the house of the informant.
6. He further submits although victim in her both the statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape but she did not state that applicant committed rape with her and in her statement under Section 164 Cr.P.C. she particularly stated that she could not state who committed rape with her.
7. He further submits actually applicant and victim were having love affair and this fact when disclosed to the informant then he badly beaten the victim and thereafter on the instigation of informant on the basis of totally false allegation she lodged F.I.R. of the present case.
8. He next submits that this fact is even evident from the opinion of the investigating officer which has been annexed as SA-3 to the affidavit.
9. He next submits in spite of the fact that in view of the investigating officer applicant was having love affair with the victim charge sheet was filed against him only due to the reason that in view of the investigating officer victim was below 18 years of age.
10. He further submits victim is actually a major girl more than 18 years of age and even according to her school record she is more than 17 years old, therefore, considering the facts and circumstances of the case applicant may be enlarged on bail.
11. Per contra, learned A.G.A. as well as learned counsel for the informant opposed the prayer for bail and submitted that victim made allegation of rape in her both the statements recorded under Sections 161 and 164 Cr.P.C. but could not dispute the fact that she did not state in her statement that applicant committed rape with her and further during investigation it was revealed that applicant and victim were having love affair and even as per the school record victim is more than 17 years old girl and there is no ossification test report of the victim on record.
12. I have heard both the parties and perused the record of the case.
13. Although victim in her both the statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape but in her both the statements she did not state that applicant committed rape with her and in her statement under Section 164 Cr.P.C. she specifically stated that she could not know who committed rape with her.
14. Further, from SA-3 which has been annexed along with the supplementary affidavit, the parcha of the case diary it appears that during investigation investigating officer came to know that applicant and victim was having love affair and although there is no ossification test report of the victim on record but according to her school record she was more than 17 years old girl.
15. Therefore, from the discussions made above, in my view applicant is entitled to be released on bail.
16. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
17. Let the applicant Chaman be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
18. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
19. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 12.5.2023 Kumar Manish.