Allahabad High Court
Aslam vs State Of U.P. on 30 June, 2021
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 1 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19242 of 2021 Applicant :- Aslam Opposite Party :- State of U.P. Counsel for Applicant :- Upendra Kumar Pushkar Counsel for Opposite Party :- G.A.,Abhishek Chauhan,Ashwini Kumar Ojha Hon'ble Vivek Agarwal,J.
1. Sri Upendra Kumar Pushkar, learned counsel for the applicant and Sri Janardan Prakash, learned AGA for the State.
2. Learned counsel for the applicant submits that his case is identical to that of Zahid, who has been given benefit of regular bail vide order dated 18.02.2021 by a co-ordinate Bench of this Court in Criminal Misc. Bail Application No.8526 of 2020.
3. Learned counsel for the applicant exposes the inherent contradictions in the prosecution story. He submits that FIR registering Case Crime No.0219 of 2019 was registered on 31.05.2019 at Police Station-Tappal, District-Aligarh, under Section 363 IPC. It is submitted that FIR was lodged against unknown persons. It is submitted that statement of one Laxmi allegedly staying in neighbourhood of the deceased, were recorded under Section 161 Cr.P.C. and this lady admitted that she had sent her son Pransh aged about five years to the place of one Tejveer, Tailor to pick some clothes. Deceased was anxious to accompany Pransh, but with a view to prevent her from going, she had given her a rupee coin and made her to stay back in her home.
4. According to her, all these events happened at around 8:30 a.m. Thereafter, she was busy in her household work and after some time she did not find the deceased at her place, when she informed the whole story to the mother of the deceased and thereafter, they looked for the deceased but will not find the girl, as a result, FIR came to be lodged.
5. Learned counsel for the applicant submits that after several days of the incident, statement of Priansh were recorded under Section 164 Cr.P.C., in which this boy has deposed that deceased was playing with his brother Kartik in front of their house, when one muslim person namely Zahid had lured the girl with a biscuit and had taken her. It is submitted that when this boy Priansh was not present at the house and had gone to visit Tejveer, Tailor, as per the statement of Laxmi, then the statement of this witness under Section 164 Cr.P.C. on which, Zahid has been impleaded as an accused is not credible.
6. Reading statement of another witness-Raj Kumar, it is submitted that Raj Kumar belongs to the same community as of the deceased and he has given a statement after considerable delay for the first time under Section 161 Cr.P.C. He has impleaded all the persons belonging to another religion with vengeance and has taken name of Zahid, his brother Mehndi Hasan and wife of Zahid namely, Sabusta and Aslam. It is submitted that it is really strange that if Raj Kumar was privy to such conversation, then it was incumbent upon him to have reported this matter to the police.
7. However, there is no police report and statement of this so-called independent witness has been recorded after considerable delay. It is submitted that there are no signs of rape on the body of the victim as per the post-mortem report. There is no motive to lure her away. No demand or ransom was sought from the complainant party and, therefore, whole story as has been put by the prosecution is a cock and bull story having no basis of its own.
8. After hearing learned counsel for the parties and going through the record, prima facie, it appears to this Court that applicant has been able to make out a case of parity with Zahid who has been enlarged on bail.
9. At this stage, learned counsel for the informant submits that there is criminal history of the present applicant and earlier a case under Section 354 IPC and Section 6/7 of POCSO Act was registered against him.
10. Taking note of such facts, I am still of the opinion that applicant has been able to make out a case of parity with co-accused Zahid.
11. Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
12. Let the applicant-Aslam in Case Crime No.219 of 2019, under Sections 363, 364, 302, 201, 120B IPC, Police Station-Tappal, District-Aligarh be released on bail on his furnishing a personal bond of Rs. 50,000/- and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed after release.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
Order Date :- 30.6.2021 Ashutosh