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2018 DIGILAW 1670 (ALL)

Usman v. State of U. P.

2018-07-30

KARUNA NAND BAJPAYEE

body2018
JUDGMENT : KARUNA NAND BAJPAYEE, J. 1. Shri Brijesh Kumar Solanki, Advocate filed his power today on behalf of applicant which is taken on record. Supplementary affidavit filed today on behalf of applicant is also taken on record. 2. Heard Shri Amit Daga, learned counsel appearing for the applicant, Shri Brijesh Kumar Solanki, learned counsel appearing for complainant and learned A.G.A. 3. Perused the record. 4. Submission of counsel for applicant is that according to the medical examination the age of the victim girl has been found to be of about 18 years while actually she was even above that age and was fully grown up major girl at the time of incident. Contention is that at any rate the victim had certainly attained the age of discretion. Further submission is that though when victim was examined by the Investigating Officer and the Magistrate, she tried to give the entire affair a colour indicating coercion and deceit played upon her and has tried to show that she was taken away by administering something intoxicating but overall facts and circumstances of the case are such which indicate that she was all the time a party and had willfully gone along with the applicant. Emphasis has been laid by the counsel that the contents of the F.I.R. would itself demonstrate that the initial allegation made by the father of the victim was that the victim has been coaxed and cajoled by the applicant and then she has been enticed away. No allegation of coercion was made by the father in the F.I.R. In fact, according to the version given in the F.I.R., it was shown that the victim was seen by co-villagers going on a motorcycle with applicant and as the applicant was a neighbour therefore there was nothing to doubt or suspect in their being seen together and, therefore, nobody raised any objection to the same. Contention is that the version of the F.I.R. is sufficient to indicate that the victim had gone along with the applicant willfully and there was absolutely no such abnormal circumstance involved in the incident that would raise even a suspicion in the eyes of anybody who saw the victim going with the applicant. Contention is that the version of the F.I.R. is sufficient to indicate that the victim had gone along with the applicant willfully and there was absolutely no such abnormal circumstance involved in the incident that would raise even a suspicion in the eyes of anybody who saw the victim going with the applicant. Submission is that as the parents were not agreeable to this relationship, therefore, the victim girl has been forced to give adverse statement later on under pressure which eventually resulted into false implication of the applicant. It has been pointed out that the victim was with the applicant for a long period of about fifteen days and it sounds highly improbable to suggest that she would still not have any occasion to resist or make a protest or raise any alarm and that for such a long period of time she could be kept under intoxication undetected and unnoticed. Submission is that in fact in the version given by the victim to the Investigating Officer it was told by her that when the money of applicant got exhausted, he was going to arrange for money along with victim and at that stage they were apprehended by the Police. That is again an indication that alleged victim girl was all the while a willing party and remained with the applicant for weeks together with her consent. Submission is that at any rate the circumstances, as indicated above, create at least prima facie a case for bail. 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 and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 12.11.2017 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. It has also been pointed out that the applicant does not have any criminal history. 5. It has also been submitted that the applicant is in jail since 12.11.2017 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. It has also been pointed out that the applicant does not have any criminal history. 5. Learned A.G.A. as well as learned counsel appearing for complainant have opposed the prayer for bail. Counsel for complainant submits that even though the medical examination of the victim indicates the majority of the victim but in the documents she still a minor, therefore, her consent is immaterial and the allegations, as have been made by the victim, would constitute the offence of rape. 6. 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. 7. Let the applicant-Usman, involved in Case Crime No.637 of 2017, u/s 363, 376 I.P.C. and Section 3/4 POCSO Act, P.S.-Thana Bhawan, District-Shamli 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. 8. 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. 9. 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.