Kuldeep Singh vs State Of U.P.
2021 Latest Caselaw 4544 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46234 of 2020
 

 
Applicant :- Kuldeep Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Prashant Vyas,Gopal Swarup Chaturvedi(Senior Adv.)
 
Counsel for Opposite Party :- G.A.,P.K. Singh,Vijay Kumar Mishra
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Heard Sri Gopal Swarup Chaturvedi, learned Sr. Advocate assisted by Sri Prashant Vyas, learned counsel for the applicant, Sri P.K. Singh, learned counsel for the informant and Sri Rishi Chaddha, learned A.G.A. for State and perused the record.

This application under Section 439 Cr.P.C. has been moved seeking bail in Case Crime No. 315 of 2020 under Sections 376, 427, 504, 506, 507 I.P.C. and 120-B, Police Station Sikandara, District Agra during the pendency of trial.

As per F.I.R. lodged by victim Varsha Chaudhary herself, the accused-applicant disclosed himself to be Inspector in Delhi Police and is also brother of her friend because of which she knew him and because of that reason, he used to often come to her house. She was having strained relation with her husband and was living alone with her five year old son in Umakunj, K.K. Nagar, Sikandra, Agra. Accused was harassing physically and mentally the informant for last many months and had committed rape upon her three times and when she said that she would make a complaint to police about this, she was threatened by the accused that her son, her brother and father, all would be killed and her face would be burnt throwing acid upon her. He was in Delhi police and nothing could be done by her against him. She had given applications many times but no action was taken on those applications and under the pressure of the accused, matter used to be dismissed. Applicant continued to commit rape upon her and mentally & physically exploited her, proof of which are with her in form of call recording and Whatsapp messages, Instagram messages, which were very indecent/vulgar and were available in her phone, which would be made available to police on demand. In the said occurrence, accused's father Jaipal Singh (co-accused) and his brother Sandeep fully cooperated and had given threat to informant and whole family that they all would be killed. These two other co-accused also used to say that if she took any action against the accused-applicant, her entire family would be decimated. On 25.5.2020 accused entered her house after breaking open her outer gate by kicks, while he was trying to break inner door as well, he was repeatedly abusing having pistol in his hand and was screaming loudly saying that he had come to kill her, regarding this information was given by her to police on 1090 and 112 number whereafter accused was caught on the spot by police but some persons of the society had put some pressure on both sides and compromise was done on condition that in future accused would not repeat such occurrence but even after that the accused's brother Sandeep and his father, both have been abusing and giving threat to kill to the informant from 30.5.2020 onwards and the accused is constantly sending dirty messages and photos on Instagram. These people are high handed persons of the area and she apprehends that her life could be in danger, therefore, strict action be taken against them and sufficient security be provided to her and her family and if anything goes wrong, administration would be responsible for the act. Report of her medical examination is annexed at Annexure 3.

Submission made by the learned counsel for the applicant is that in F.I.R. itself, victim has stated that she has been raped three times but no F.I.R. was got lodged by her in that regard. She has a child also of five years. She was having affair with the accused-applicant which continued for a long time and they were having consensual relationship but later on some mishap occurred between the two which led to strained relations between them but accused continued to have strong infatuation towards the victim which he should not have done, to that extent, his conduct may be treated to be wrong but some times it happens when someone has strong emotions for one whom he loves. For his conduct, he has already remained in jail for about close to six months. He has drawn attention to the statement of the victim recorded under Section 164 Cr.P.C. in which it is stated by the victim that for last four years, she was having dispute with her husband. Poonam, who is her friend, in front of her, her husband had beaten her up many times because of which she had lodged the name of Poonam as one of the witnesses in this case. Poonam, whenever, she would come to her house at Agra, her brother i.e. accused-applicant would also accompany her. Victim's brother Prateek Chaudhary was preparing for UPSC exam in Delhi and whenever she would go to Delhi to her brother's place, Poonam used to come to meet her and had also taken her to her house and also at the flat of the accused-applicant for the purposes of meeting. After some time, accused started having ill eye upon her and started communications on mobile through Whatsapp, Instagram, Facebook of indecent/vulgar type and after having seen such activities of the accused, she started ignoring him. The accused would often come to her house at Agra without any information and at pistol point, would give threat to kill her son and against her wish, he used to commit rape upon her and used to give threat that if she opened her mouth, her mouth would be cut and she would be burnt by acid. Till her statement, accused had committed rape upon her three times against her wish. First time when she was raped, she disclosed about it to Poonam. When she told accused that she was going to make complaint to police, he said that he would kill her brother and father, therefore, she was scared. Subsequently, she gave full information about conduct of the accused to accused's brother Sandeep and his father Jaipal but they did not listen and took side of his son. All of them had together come to her house two months ago and started putting pressure that she should marry the accused but she resisted this offer because she was already a married lady and she also told that she would make complaint about it, then they all had beaten her up badly and had abused her. Her house was also broken and the accused gave threat that he would decimate her entire family and then only she had informed the police at 112 number. On 8.5.2020 she was raped by the applicant at her house at Sikandara, Agra against her wish. On 11.6.2020, report was lodged against the applicant and other two co-accused and since thereafter they were continuously threatening her on mobile that she should take that case back and pressure is being build up upon her to compromise, pressurizing her brother. Thereafter learned counsel for the applicant has drawn attention to the annexure 21 which contains the chats exchanged between the accused and the victim, which are extremely vulgar and it is argued that it was not only accused who was chatting single handedly from his side and was indulging in vulgarity, rather it was being reciprocated from the side of the victim as well and therefore it was nothing but consensual act, therefore, accused should be released on bail. He is lying in jail since 3.10.2020. He has no criminal history. If released on bail, he will not misuse the liberty of bail.

Learned counsel for the applicant has also drawn attention to the paragraph 22 of the counter affidavit in which it is stated that victim went to different tourists places with her friends. Applicant was brother of the victim's friend and used to tag along with him to various places, thus they became friends and used to chat but after some time, accused started sending vulgar messages and chats which was opposed by her. There was no consensual relationship between them. Applicant was brother of the victim and they were having normal relationship of friendship as friends would have, but accused started threatening her to marry him and since thereafter he intensified harassment sending obscene and vulgar messages. Having drawn attention to these paragraphs, learned counsel for the applicant has argued that these paragraphs indicate that there was consensual relationship and therefore accused deserves to be allowed bail.

Learned counsel for the informant as well as learned A.G.A. have vehemently opposed the prayer of bail and have argued that annexure-7, which has been annexed in order to place before court the whatsapp chatting between the two of vulgar nature, was not part of the case diary and investigation, as has been mentioned in counter affidavit.

Learned counsel for the informant has further drawn attention to F.I.R. lodged by victim being crime no. 472 of 2020, under Section 147, 504, 506, 427 IPC on 16.8.2020 for the occurrence which took place on 14.8.2020 against brother of the accused in which it is mentioned that on the date of occurrence at about 10:30 PM, five persons came on two motor-cycles which included Sandeep (brother of the applicant) and started pounding at the door of the house of the victim and started abusing badly because victim did not open the door. Glasses of windowpane were broken. Victim had recognized the brother of the accused who started abusing her saying that they would teach her a lesson for lodging F.I.R. under Section 376 IPC and would render her as a prostitute and that she should take that case back and thus these persons had also caused damage to Activa and motor-cycle also. After lot of difficulty phone was made to the police and on the next date, she lodged F.I.R. when police had opened a latch from outside because the accused had locked her inside the house. Earlier also co-accused Sandeep and Jaipal had abused her badly and threatened to kill her and also throw acid on her face, therefore, she apprehends that they can commit such offence any day as they were threatening. Thereafter attention is drawn to the annexure CA-2 of the counter affidavit which contains whatsapp messeges sent by the accused to the victim which indicate such language " tujhe sath lekar hi marunga" "tu meri hai" "mair fir bol rha hu varsha" "ya to cheezon ko theek karke mere pas aaja" "warna end bahhut bura hoga" "last me marunga ya maroonga" "tujhe idea nahi hai varsha". After having pointed out these samples of chat, it was argued that accused appears to have gone mad and in case he is released on bail, he could further harass the victim to the extent that she could even be dis-figured by throwing acid etc. or could even be killed and he would not allow her statement to be recorded before the court. It is further argued that even if the argument of learned counsel for the applicant be taken to be true that initially there was some consent to have relationship with the accused but the same cannot be taken to be a right that accused would do with the victim whatever he wanted because once she stopped him from interfering in her affairs, he should have stayed away from her but it appears that even after having been sent to jail, even his family members such as brother etc. are constantly trying to put pressure upon her in order to compel her to withdraw criminal case launched against the applicant which is evident from the second F.I.R. lodged by the victim stated above, therefore it was pleaded by the learned counsel for the informant that bail should be rejected and if it be allowed, it should be allowed only after the statement of the victim before the court below is recorded because there is strong chances of the victim being eliminated, accused being a police officer, therefore he would resort to all high handed practises.

Learned counsel for the informant has placed reliance upon Prahlad Singh Bhati Vs. NCT Delhi, 2001 LawSuit (SC) 529 and he has drawn attention to the paragraph no. 8 of the said judgment, wherein it has been laid down that while granting bail to the accused the court ought to keep in mind the nature of accusations, evidence in support thereof, the severity of the punishment, character and behaviour, means and standing of the accused. In view of this position of law, standing is that the accused is a police officer who is indulging in such activity which appear to be enormous to the victim to the extent that she could be killed, therefore his bail should be refused.

Learned A.G.A. has also vehemently opposed the prayer of bail.

After having heard the arguments of both the sides and having gone through various pieces of evidence, which are placed before this Court, this Court is of the view that conduct of the accused is deprecatory as being police officer who is supposed to extend protection to the weaker section and the accused himself is indulging in such kind of grave offence and not only that he has given threats to kill the victim but also threatened that he would burn her face by throwing acid and is resorting to all sorts of pressure to bend her to consent that she would withdraw the case against him and there could be strong possibility of accused intensifying the harassment or even going to the extent of attacking the victim, in case he is released, therefore this is not found to be a fit case for grant of bail at this stage. Accordingly, it is rejected.

However, it is directed that when the evidence of the victim is concluded, applicant is granted liberty to renew his prayer of bail.

Order Date :- 24.3.2021

A.P. Pandey