Dileep Kumar Yadav vs State Of U.P.
2021 Latest Caselaw 1832 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 30
 

 
Case :- BAIL No. - 12182 of 2019
 

 
Applicant :- Dileep Kumar Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ram Dev,Pravin Singh,Sachin Tejashwi,Sanjai Kumar Singh,Shailendra Singh Rajawat
 
Counsel for Opposite Party :- G.A.,Pramod Kumar Yadav
 
Hon'ble Vikas Kunvar Srivastav,J. 

Called on.

Learned counsel Sri Shailendra Singh Rajawat, Advocate on behalf of the bail-applicant, learned Additional Government Advocate for the State and learned counsel Sri Pramod Kumar Yadav, Advocate appearing for the complainant are present.

The present accused-applicant-Dileep Kumar Yadav is involved in Case Crime No. 382 of 2019, under Sections 376(D), 506, 323 IPC and Section 3/4 of Protection of Children from Sexual Offences Act, accordingly the opposite party-the complainant of the case was served with notice, represented through learned counsel.

On perusal of record, it is found that counter and rejoinder affidavits among the learned AGA for the State, complainant and for the bail-applicant have already been exchanged.

So far as counter affidavit of the complainant is concerned, it is on record but learned counsel for the bail-applicant Sri S.S. Rajawat submits that entire prosecution story has already been covered in the counter affidavit and rejoinder to the counter affidavit filed by the State, therefore there is no need to submit rejoinder affidavit as against the counter affidavit filed by the complainant also.

The case is ripe for hearing. Learned counsel are ready to argue the case.

Heard learned counsel for the parties and perused the material available on record.

The present bail application is filed on behalf of the accused-applicant-Dileep Kumar Yadav, involved in Case Crime No. 382 of 2019, under Sections 376(D), 506, 323 IPC and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station Maurawan, District Unnao.

The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Special Judge, POCSO Act/Additional Sessions Judge, court no. 8, Unnao vide order dated 17.10.2019.

Learned counsel for the accused-applicant submitted, reading over the First Information Report dated 26.08.2019 lodged by the victim herself, that she informed that on 26.08.2019 at about 4:00 p.m. when she went to the fields to run away the cows from therefrom. The present accused-applicant, a native villager, namely, Dileep Kumar Yadav and at a distance from him Tinku Yadav, stood near the grove of Bachchan Pandit. The present accused-applicant Dileep Kumar Yadav caught her from back and lifted away her from the field in the grove of said Bachchan Pandit where he committed rape with her. When she tried to make cry for her rescue, Tinku Yadav, standing at a distance, did not save her, rather fled away from the spot. After commission of rape, the accused-applicant-Dileep Kumar Yadav threatened her to risk of life and limb, if she complains about the occurrence to any one else.

Learned counsel further submitted that when the FIR was lodged, the police started investigation and recorded the statement of the victim/complainant under Section 161 Cr.P.C. wherein she has reiterated the version of the FIR, but on examination under Section 164 Cr.P.C., she had made an improvement by adding the name of co-accused Tinku Yadav also for committing rape with her in the same occurrence.

Learned counsel for the bail-applicant drew attention towards the medical examination of the victim wherein the allegation as to the application of physical force by the accused-applicant is overruled as no mark of external injury on the person of the victim was found, while she stated in her statement recorded under Section 164 Cr.P.C. that her clothes were put off by the accused-applicant and she was thrown on the earth forcibly for commission of rape. Medical examination was made reasonably just after the occurrence of rape in the manner stated by her, therefore absence of external injury on her body makes her statement fake and unbelievable at this stage.

Learned counsel further pressed the point that, the examination of private part also have no confirmation of forcible sexual intercourse and even the hymen reported to be old torned without any injury on the vagina.

Learned counsel submitted that the victim has stated her age 17 years in her FIR and the statement under Section 164 Cr.P.C. before the court. The prosecution in counter affidavit referred the marksheet of High School examination being the date of birth 08.11.2003 whereas her date of birth on the basis of Aadhar Card is 01.01.2003, as such there is uncertainty as to her age.

Learned counsel for the bail-applicant referred para 16 of a judgment rendered by a Division Bench of this Court in the case of Smt. Parvati Kumari and Others Vs. State of U.P. and Others reported in [2019 (3) ALJ 518, para 16] wherein it has been held that the Aadhaar Card cannot be the conclusive proof of the date of birth.

Lastly, learned counsel has submitted that the co-accused Tinku Yadav has already been granted bail in the same circumstances by a Co-ordinate Bench of this Court vide order dated 19.11.2019 passed in Bail No. 11040 of 2019.

Submitting counter to the argument made by learned counsel for the bail-applicant, learned AGA and learned counsel for the complainant unanimously referred to the High School Marksheet annexed with their counter affidavits, according to which the date of birth of the victim is entered as 08.11.2003, as such both learned counsel stress on the point of age of victim, on the date of incident dated 26.08.2019, being less than 17 years.

In accordance with the Juvenile Justice Act, in case of doubt and uncertainty of the age of child, presumption of age in preferential basis may be raised on the basis of the date of birth entered in the High School Certificate. According to which the age of the victim was below 17 years at the time of incident, therefore, the bail application of the present accused-applicant is liable to be rejected at this stage. Lastly, learned AGA is arguing that chargesheet in the case has already been submitted and trial is to commence.

In rebuttal to the argument of learned counsel for the complainant and learned AGA, learned counsel for the bail-applicant submitted that in the course of investigation to ascertain the age of the victim, medical examination for radiological assessment of the age was made which is made Annexure-2 to the bail application, wherein the age of the victim is reported at about 19 years. Since the prosecution has itself collected the radiological assessment of the age in the course of the investigation, therefore there is no question of disbelieving the said report with regard to age of the victim.

Learned counsel further submitted that irrespective of the issue as to the age of the victim, the most material thing is that there is contradiction in between the FIR version and the statements recorded under Section 161 Cr.P.C. as well as that recorded under Section 164 Cr.P.C. before the court. The statements are contradictory, suffering from improvement and embellishment, therefore, allegation as to the rape coupled with the medical examination report are sufficient to disbelieved against the present accused-applicant. In the similar circumstances, the co-accused Tinku Yadav has already been granted bail.

The veracity of the statements of the victim, in the circumstances of uncertainty of age and contradiction therein are to be tested by sufficient and cogent evidence during trial. The accused-applicant is ready and willing to participate in the trial so as to put his defence efficaciously. Learned counsel further submitted that the present accused-applicant has no criminal antecedent and he is a common man and native of the same village. He is not in a position to flee away from the process of the court, therefore he deserves to be granted bail.

Hon'ble Apex Court in para 21, 22 and 23 of the judgment given in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in [(2012 1 SCC 40)-(Spectrum Scam Case)], has laid down certain objects of bail under Section 437 & 439 of the Cr.P.C. which are as follows:

"21.In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

22.From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

23.Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.

Let applicant-Dileep Kumar Yadav be released on bail in Case Crime No. 382 of 2019, under Sections 376(D), 506, 323 IPC and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station Maurawan, District Unnao, on his furnishing a personal bond of Rs. 100000/- (one lac) and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is 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.

(iv) 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 absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 2.2.2021

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