Allowed

Awadesh Kharwar v. State of U.P.

Allahabad HC16 Aug 2023BAIL/31810/2023

Case brief

AI extract

What is this about?

In a bail application under Section 439 CrPC regarding rape and related charges, the High Court examined allegations of false make-up, significant delay in FIR filing, and the petitioner's prior record. Considering these factors, the Court allowed the bail application.

What did the court decide?

The applicant shall be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

Awadesh Kharwar Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:164939

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31810 of 2023

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Applicant :- Awadesh Kharwar Opposite Party :- State of U.P. Counsel for Applicant :- Girish Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Heard Sri Girish Kumar Singh, learned counsel for the applicant and Sri Rajeev Dhar Dwivedi, learned AGA for the Staterespondent.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 139 of 2023, under Sections 376, 504, 506 IPC, Police Station- Turkpatti, District- Kushinagar, during pendency of the trial in the court below.

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FIR of the present case was lodged against applicant under Sections 354, 504, 506 IPC on 21.04.2023 and according to the FIR, on 13.04.2023 applicant made sexual assault upon the informant.

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Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and admittedly informant i.e. prosecutrix of the case is a major and married lady and initially FIR of the present case was lodged against applicant under Sections 354, 504, 506 IPC but subsequently in her statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. prosecutrix started making allegation of rape against the applicant and this fact clearly suggests that totally on the basis of false allegation of rape, applicant has been made accused in the present matter.

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He further submitted that as per the FIR, incident of sexual assault was made by the applicant on 13.04.2023 but FIR was lodged on 21.04.2023 i.e. after about more than a week and this fact further suggests that totally on the basis of false allegation, applicant has been made accused in the present matter.

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He further submitted that actually some dispute arose between

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applicant and husband of the informant on 13.04.2023 and only due to this reason after about week i.e. on 21.04.2023 totally on the basis of false allegation of sexual assault, FIR of the present case was lodged against the applicant and this fact is evident from the GD entry dated 22.04.2023, which has been annexed as Annexure No. 7 to the affidavit, which shows that due to dispute arose between applicant and husband of the informant, applicant has been challaned under Section 151, 107, 116 Cr.P.C.

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He further submitted that applicant is not having any criminal history and he is in jail in the present matter since 26.06.2023 , therefore, he may be released on bail.

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Per contra, learned AGA although, opposed the prayer for bail but could not dispute the argument on facts advanced by learned counsel for the applicant

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I have heard learned counsel for the parties and perused the record of the case.

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Although, prosecutrix i.e. informant of the present case in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape against the applicant but admittedly she is major and married lady and she herself lodged the FIR of the present case against the applicant but in the FIR she did not make any allegation of rape against him and only allegation of sexual assault was made by her against the applicant.

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Further, from the Annexure No. 7 of the affidavit, it appears that on 22.04.2023 applicant was challaned under Sections 151, 107, 116 Cr.P.C. due to dispute arose between applicant and husband of the informant on 13.04.2023. Further, incident of alleged sexual assault, as per the FIR, was occurred on 13.04.2023 but FIR was lodged on 21.04.2023 i.e. after about a week.

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Further, applicant is not having any criminal history and he is in jail since 26.06.2023.

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Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed .

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Let the applicant- Awadesh Kharwar be released on bail in

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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:-

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(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(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.

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(iii) The applicant shall not indulge in any criminal and anti-social activity.

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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.

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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.

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Order Date :- 16.8.2023 KK Patel

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Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad

Awadesh Kharwar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Awadesh Kharwar v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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