Ashish Kumar Singh vs State Of U.P. And Another
2021 Latest Caselaw 8001 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 74
 

 
Case :- CRIMINAL APPEAL No. - 3593 of 2020
 
Appellant :- Ashish Kumar Singh
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ram Dayal Tiwari,M.D. Singh Shekhar (Senior Adv.),Ranjay Kumar
 
Counsel for Respondent :- G.A.
 
With
 
Case :- CRIMINAL APPEAL No. - 3627 of 2020
 
Appellant :- Abhishek Kumar Dubey
 
Respondent :- State Of U.P. And Another
 
Counsel for Appellant :- Rajiv Lochan Shukla,Akash Dwivedi,Anand Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

Heard Sri M.D. Singh Shekhar, Senior Advocate assisted by Sri Ranjay Kumar learned counsel for the appellant in Criminal Appeal No. 3593 of 2020 and Sri Rajiv Lochan Shukla, learned counsel for the appellant in Criminal Appeal No. 3627 of 2020, learned A.G.A. for the State and perused the record.

Counter affidavits filed in each of the aforesaid appeals, which are taken on record.

Notice sent to respondent no. 2 as per letter of the concerned Chief Judicial Magistrate has been served personally but none has appeared on behalf of respondent no. 2 in any of the aforementioned appeals.

These two criminal appeals have been filed by the appellants Ashish Kumar Singh andAbhishek Kumar Dubey with a prayer to set aside the judgment and order dated 23.11.2020, passed by Special Judge, SC/ST Act, Kanpur Nagar, rejecting the bail application of the accused-appellants, in Case Crime No. 0718 of 2020, under Sections 328, 376D I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Barra, District Kanpur Nagar.

Learned counsel for the appellant has submitted that the accused-appellants have been falsely implicated in the present case. The first information report has been lodged after a delay of 24 hours. Nothing has come against the accused-appellants in the statement of the victim recorded under Section 164 Cr.P.C. The victim is aged about 24 years. Nothing has come in the medical examination to corroborate the fact of rape on the victim. Nothing incriminating articles have been recovered from the said hotel nor the CCTV footage and the statements of the witnesses supported the first information version. It has also been submitted that there is nothing on record to show that any rape was committed on the victim and there is enough material on record to show that false case was manufactured. The police reached there on the telephonic massage on dial 112 and the victim with her friend both were rushed out from the hotel. Therefore, after 24 hours from the time of occurrence, a concocted story was prepared and a false first information report was lodged against the accused persons. It has also been submitted that there is nothing on record to show that there was any pressure on the victim and she voluntarily went to the hotel, took beer and as her statement given under Section 164 Cr.P.C. shows that she did not see anybody committing rape on her. She had the impression that some mischief had been committed on her but who committed, she did not realize as per her statement under Section 164 Cr.P.C. It has also been submitted that the learned court below ignored this aspect and simply relying on the statement of the victim which is in itself contradictory and ignoring the other evidences collected by the I.O. and also ignoring that the offence under Section 328 I.P.C. was not made out, rejected the bail application, as such, the court below has committed gross illegality in passing the impugned order, which is liable to be set aside and the accused-appellants are entitled to be released on bail.

Learned A.G.A. has vehemently opposed the prayer and has submitted that the victim has named the accused persons in the first information report itself and in the statement under Section 161 Cr.P.C., she has taken the name of accused Ashish Kumar Singh and has stated that in a subconscious stage, she saw that the accused-appellant Ashish Kumar Singh was doing sex with her. She also found back pain which gave her impression that rape was committed on her. Submission is that the victim belongs to SC/ST community and as such, the offence becomes more serious. The accused persons have been charge sheeted for the offence of gang rape with a woman of SC community and as such the offence becomes more heinous and serious and the learned court below considering all the aspects of the case did not find the case in which bail can be granted to the accused persons. There is no illegality in the impugned order and, therefore, the appeal is liable to be dismissed. Learned counsel appearing on behalf of accused-appellant Abhishek Kumar Dubey has further added that why the victim has named him, because according to the first information report, when she was in half conscious stage accused-appellant Ashish Kumar Singh was doing sex with her but not such allegation was made by her against the accused-appellant Abhishek Kumar Dubey, as such, no case is made out against him and without considering this aspect, the bail application has been rejected in a mechanical way.

From perusal of the record, it appears that a named first information report has been lodged against the the appellants and one Monika @ Nivadita and the story is that Monika came to her and took her to the hotel saying that there is birth day party and there limited persons have been invited. With her, she went to the hotel, where the accused-persons were already present. When asked by her, she was told that they have gone to bring the cake. Thereafter, beer was offered to her in which some intoxicant was administered and when she took beer, she got unconscious and in that unconscious stage, rape was committed on her. On the contrary, there is observation made by the I.O. with reference to the CCTV footage in which it has been shown that both the victim and Monika were to have gone to the hotel room and they were also found to rush back from the hotel at about 04:00 to 04:30 P.M. It was also found in the CCTV footage that the victim was not in a intoxicant stage and she was all conscious and rushed out from the hotel room on her own efforts. The I.O. has also concluded that the police tried to talk with the victim when she was coming out from the hotel but she avoided and went from there.

Submission is that, if any wrong was committed with her, she must have spoken to the police at that time, but she avoided to say that anything has been committed with her. Further submission is that probably the fianc informed the police and on his phone, the police reached and it is why the whole story was made just to save the marriage. The victim had gone to the hotel willingly with her friend and stayed there, swallowed beer in a large quantity by herself and either she become unconscious and she remained conscious but she did not say anything of committing rape on her while her statement was recorded under Section 164 Cr.P.C. Submission is that if any rape was committed by either of the persons, the victim should have told it to the Magistrate while she was being examined under Section 164 Cr.P.C. But in the whole statement recorded under Section 164 Cr.P.C., there is nothing, on the basis of which any imputation, any allegation can be made against the accused persons, on the basis of which, their bail application could be rejected.

It is clear from the record that the victim was not taken to the hotel by the accused persons,. She was not forced to take beer and she took beer by herself, she did not say to the Magistrate in her statement recorded under Section 164 Cr.P.C. that rape was committed by the accused Ashish Kumar Singh. She also did say nothing against the co-accused Abhishek Kumar Dubey nor any allegation of rape was made on him. The first information report was lodged after 24 hours and that also shows that an after thought story was prepared from the side of victim. If the learned court below could have considered all these important facts, the decision could have been different. The learned court below was influenced by the idea that charge of rape has been made against the accused persons and the victim belongs to SC community. As such, I find that the learned court below has erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set aside and the appeals are liable to be allowed.

Accordingly, the appeals are allowed and the impugned order dated 23.11.2020, passed by Special Judge, SC/ST Act, Kanpur Nagar rejecting the bail application of the accused-appellants, in Case Crime No. 0718 of 2020, under Sections 328, 376D I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Barra, District Kanpur Nagar, is hereby set aside.

Let the appellants namely Ashish Kumar Singh andAbhishek Kumar Dubey are released on bail on their furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

(i) The appellants will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellants are abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

(ii) The appellants will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.

(iii) The appellants will not indulge in any unlawful activities.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellants to prison.

Order Date :- 15.7.2021

sailesh