Court released the applicant on bail in a trial involving allegations of rape under various IPC and special enactments, citing discrepancies in FIR timing and medical evidence, subject to strict conditions.
Release of applicant Manish Tiwari on bail furnishing personal bond and two sureties subject to specific conditional undertakings.
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Court No. - 16
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10616 of 2020
Applicant :- Manish Tiwari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pratibha Singh,Ashok Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Ms. Pratibha Singh, learned counsel for the applicant, learned A.G.A. and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Manish Tiwari seeking enlargement on bail during trial in connection with case crime no.228 of 2019, under Section 376-D and 506 I.P.C. and Section 3(2) V SC/ST Act and 3/4 of the Protection of Children From Sexual Offence Act, 2012, P.S. Barsathi, District Jaunpur.
Learned counsel for the applicant argued that for an incident alleged to have taken place on 23.10.2019 present first information report was lodged on 28.10.2029 by Gulabchandra Gautam alleging therein that his daughter aged about 18 years was raped by the present applicant and co-accused Santosh Tiwari.
It is argued that delay of five days for lodging of the first information report is unexplained. It is further argued that in the statement recorded under Section 161 Cr.P.C. of the prosecuterix which is annexed as Annexure-2 to the affidavit she has assigned the role of the applicant is that of catching hold of the victim and allegation of rape is
assigned to co-accused Santosh Tiwari. Subsequently in the statement recorded under Section 164 Cr.P.C. she stated that both the accused persons namely Santosh Tiwari and Manish Tiwari (present applicant) have committed rape on her.
It is next argued that the medical evidence does not support the prosecution case. The supplementary medical report does not give any lead as to any rape being committed on the prosecuterix. Date of birth as even stated in the statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecuterix shows her age to be 18 years and Investigating Officer has collected the High School Marksheet of the victim wherein her date of birth is 20.07.2002. It is argued that present case is a case of false implication. The applicant having no criminal history is in jail since 30.10.2019.
Per contra, learned AGA opposes the prayer for bail but could not dispute the arguments raised by learned counsel for the applicant.
Considering the totality of the case in particular, nature of evidence available on record without further any comments on merit, I am inclined to release the applicant on bail.
Let the applicant Manish Tiwari be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if 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 I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
Order Date :- 5.3.2020 Asha
(Samit Gopal,J.)
2 issues framed by the court
Whether bail should be granted to the applicant in a case involving alleged rape and sexual offences against a minor.
Whether the delay in lodging the First Information Report and inconsistencies in the prosecuterix's statements indicate false implication.
8 provisions across 4 enactments
Manish Tiwari
State of U.P.
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
