Mushtaque Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

Neutral Citation No. - 2024:AHC-LKO:26618

Court No. - 12

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3048 of 2024

Applicant :- Mushtaque Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. Counsel for Applicant :- Santosh Kumar Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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1. Supplementary affidavit filed today in Court is taken on record.

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2. Heard learned counsel for the applicant, learned AGA and perused the record.

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3. The applicant seeks enlargement on bail in FIR No.244 of 2023, under Section 323, 354-Ka, 354-Kha, 376 IPC, P.S. Malipur, District Ambedkar Nagar.

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4. In terms of the FIR it was alleged that the daughter-in-law of the informant remains unwell and on 31.12.2023 at about 2 in the night, she went alone and started raising hue and cry. Upon hearing the same, when the informant and her daughter came, she saw that the applicant was taking her on a motorcycle. It was also stated that the informant and the family members chased him when near a Jungle it was seen that the applicant was misbehaving with the daughter-in-law and her Mangalsutra had also fallen. It is also stated that when the applicant saw the informant and the family member, he ran away. In the first statement of the victim recorded under Section 161 Cr.P.C., the victim could not give any specific statement. Subsequently, in the statement under Section 164 Cr.P.C., she stated that on the offending night, the applicant had removed her clothes and had misbehaved with her. In the second statement under Section 161 Cr.P.C., she stated that her clothes were removed and the offence under Section 376 IPC was committed. The medical report on record filed alongwith the supplementary affidavit does not corroborate the allegation of any sexual offence committed on the victim in question.

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5. Learned AGA while opposing the bail application argues that there is a statement of the witness who had stated that they saw the applicant taking the victim on the motorcycle and when they reached the spot, he ran away. The Saree worn by the victim was partly removed. It was also stated that the allegation against the applicant was that he had misbehaved with the victim, however, in the statement under Section 161 Cr.P.C.,

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recorded in the second time, specific allegation of rape was made by the victim.

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6. Considering the fact that in the FIR and the two statements, there was no specific allegation of rape being committed on the victim coupled with the fact that the medical report does not corroborate the allegation of rape as alleged against the applicant in the second statement and even the eyewitness not suggesting the commission of rape against the applicant, a case for bail is made out, particularly, when the applicant has no criminal history and is in custody since 01.01.2024. In view thereof, the application is allowed.

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7. Let the applicant Mushtaque be released on bail in aforesaid FIR number on his furnishing a personal bond with two sureties of Rs.20,000/- each to the satisfaction of court concerned with the following conditions:

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(a) The applicant shall execute a bond to undertake to attend the hearings;

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(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

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(c) The applicant shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.

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Order Date :- 1.4.2024 nishant

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Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad, Lucknow Bench

Mushtaque v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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Mushtaque v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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