Allowed

Golu @ Sumit v. State of U.P. and 3 Ors.

Allahabad HC1 Aug 2022/12933/2021

Case brief

AI extract

What is this about?

The High Court allowed a bail application under IPC sections 363, 366, 376, etc., and POCSO Act. Bail was granted due to contradictions in victim statements (161 vs 164 CrPC), likelihood of false implication, and medical report not supporting rape allegations.

What did the court decide?

Applicant enlarged on bail with a personal bond and two sureties subject to twelve specific conditions including prohibition on tampering and mandatory appearance dates.

Golu @ Sumit Vs State of U.P. and 3 Ors. — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12933 of 2021

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Applicant :- Golu @ Sumit Opposite Party :- State Of U.P. And 3 Ors. Counsel for Applicant :- Alok Kumar Mishra,Sanjay Singh Chauhan Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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List revised. None appears on behalf of opposite party No. 2 despite service of notice as per the office report dated 02.03.2022, but till date neither any vakalatnama nor any counter affidavit has been filed on behalf of opposite party No. 2. It appears that opposite party No. 2 is not interested to contest the case, therefore, this Court has no option but to proceed with the matter for final hearing.

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Counter affidavit on behalf of State and in reply thereto rejoinder affidavit on behalf of applicant are reflecting on e- portal system, thus, pleadings are complete.

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Heard Shri Alok Kumar Mishra, the learned counsel for the applicant and learned A.G.A. for the State and perused the record.

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The applicant, Golu @ Sumit , has moved the present bail application seeking bail in Case Crime No. 333 of 2021, under Sections 363, 366, 376, 343, 511, 323, 506 I.P.C. and Section 4/5 of Protection of Children From Sexual Offences Act, Police Station Taalgaon, District Sitapur.

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Learned counsel for the applicant submits that the applicant has falsely been implicated in the case due to village rivalry and partypandi. No such incident, as alleged by the prosecution, took place. The entire prosecution story has been set up with intention to defame the image of applicant and his family members in the society.

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Learned counsel for the applicant further submits that initially F.I.R. was lodged under Sections 363, 366 I.P.C. against five persons wherein the applicant's name does not find place. When the victim was recovered her statement was recorded under Section 161 Cr.P.C. wherein she has admitted that she was in love with one Vijay Shankar, who is named in the F.I.R., she went with him to Sitapur where she lived with him as husband

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and wife. The victim has not levelled any allegation of rape or otherwise against the applicant and even she has not taken his name in her statement recorded under Section 161 Cr.P.C. Thereafter, when the statement of victim was recorded under Section 164 Cr.P.C. she has taken a somersault and has changed her version and made allegation for taking her forcefully against three persons , namely, Vijay Shankar, Meenu and the present applicant, and allegation of rape has been levelled by her against Vijay Shankar and the present applicant.

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Learned counsel for the applicant further submits that allegation of rape made by the victim in her statement recorded under Section 164 Cr.P.C. got demolished after perusal of her medical report, wherein the concerned doctor has opined that there is no sign of use of force, no forceful penetration injury found and sexual violence cannot be ruled out. As per the medical report the age of the victim was found to be 15 years.

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Learned counsel for the applicant further submits that as the applicant is neither named in the F.I.R., nor his name was taken by the victim in her statement recorded under Section 161 Cr.P.C. and first time his name came into picture in the statement of the victim recorded under Section 164 Cr.P.C., which appears to be given by the victim on the pressure of her family members as there is village partybandi. The entire prosecution story has been set up with malafide intention to falsely implicate the applicant, therefore, the applicant be enlarged on bail by this Court sympathetically.

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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-21 of the affidavit filed in support of the bail application. The applicant is in jail since 21.09.2021 and has already undergone a substantial period of detention, and that in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. opposed the prayer for bail.

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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, considering the fact that the applicant is not named in the F.I.R.; there is a vast contradiction in the statements of victim recorded under Section 161 and 164 Cr.P.C.; the victim has not made any allegation of rape or otherwise against the applicant in her statement recorded under Section 161 Cr.P.C. and only in her statement recorded under Section 164 Cr.P.C. the victim has made allegation against the applicant which appears to be on the pressure of her family members; the medical report of the victim does not support allegation of rape as doctor has not found any sign of use of force and no forceful penetration injury was found on her private parts; 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.

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The prayer for bail is granted. The application is allowed.

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Let the applicant, Golu @ Sumit , involved in Case Crime No. 333 of 2021, under Sections 363, 366, 376, 343, 511, 323, 506 I.P.C. and Section 4/5 of Protection of Children From Sexual Offences Act, Police Station Taalgaon, 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 :-

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(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(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.

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(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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(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

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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.

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(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.

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(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.

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(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.

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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.

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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.

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Order Date :- 1.8.2022 Mustaqeem

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Digitally signed by MOHD MUSTAQEEM KHAN Date: 2022.08.04 10:16:03 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Golu @ Sumit v. State of U.P. and 3 Ors.

Case brief

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Golu @ Sumit v. State of U.P. and 3 Ors.

Case brief

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