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2017 DIGILAW 802 (ALL)

Raj Kumar @ Mallar v. State of U. P.

2017-03-21

KARUNA NAND BAJPAYEE

body2017
JUDGMENT Karuna Nand Bajpayee, J. Heard learned counsel for the applicant and learned A.G.A. Perused the record. Submission of the counsel for the applicant is that according to the medical examination, the age of the girl is about 17 years but actually she is much above of this age and she is a fully grown up major girl. Further submission is that when the victim was examined by the Investigating Officer she told her age about 20 years. It was also submitted that during the course of her statement given before the Investigating Officer, she had completely denied the allegation of rape having been committed upon her by anybody. In fact, she expressed her desire to go along with the co-accused Arvind @ Nanhey Lalla and also admitted to have lived with the aforesaid co-accused in Delhi. Submission is that subsequently the allegation of rape has been made by the victim in her statement recorded before the Magistrate under Section 164 of Cr.P.C. Contention is that the applicant is the real brother of the co-accused Arvind @ Nanhey Lalla with whom, the victim had affair and he has been falsely implicated in the case. Submission is that though in the statement made before the Magistrate under Section 164 of Cr.P.C. the allegation of committing rape has been made against the applicant but the complete omission of applicant’s name in her statement recorded during the course of investigation when she was earlier examined by the Investigating Officer, is a strong indicator which discredits the worth of her later statement relating to the applicant and on that ground, at least, a prima facie case for bail in favour of the applicant is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant 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. Lastly, it has also been pointed out that the accused is in jail since 30.7.2014 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Lastly, it has also been pointed out that the accused is in jail since 30.7.2014 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Learned A.G.A. opposed the prayer for bail. 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, this Court is of the view that the applicant may be enlarged on bail. Let the applicant- Raj Kumar @ Mallar, involved in Case Crime No. 393 of 2014, u/ss. 363, 376 I.P.C. and 3/4 Protection of Children from Sexual Offences Act 2012 P.S.- Allahganj, District-Shahjahanpur, be released 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 : - (1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever. (2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice. 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. 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 merits of the case.