Prashant vs State Of U.P.
2022 Latest Caselaw 1691 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37721 of 2021
 

 
Applicant :- Prashant
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Devesh Kumar Shukla,Ajai Kumar Singh,Dharmesh Kumar Shukla
 
Counsel for Opposite Party :- G.A.,Parth Sharma,Sanjay Vikram Singh
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Ajay Kumar Shukla and Sri Devesh Kumar Shukla, learned counsel for the applicant, Sri Amarjeet, Advocate holding brief of Sri Sanjay Vikram Singh, learned counsel for the first informant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Prashant under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No.213 of 2021 for offence punishable under Sections 452, 376, 506, 120B of the Indian Penal Code, registered at Police Station-Akrabad, District Aligarh, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Aligarh vide order dated 02.08.2021.

Brief facts of the present case are that the first information report dated 26.05.2021 has been lodged by the victim stating therein that husband of the victim died 5 years earlier to the incident. After the death of her husband one night, applicant entered into room of the victim and committed rape with her and threatened for dire consequences. It is further alleged that first informant told incident to the parents of the applicant but they did not take any action against the applicant. Applicant has committed repeatedly rape with the victim on the pretext of false promise of marriage.

After lodging of the first information report, statement of the victim under Section 161 Cr.P.C. has been recorded on 26.05.2021. Medical examination of the victim was conducted on 27.05.2021. Second statement under Section 161 Cr.P.C. has been recorded on 05.06.2021. Statement of the victim under Section 164 Cr.P.C. has been recorded on 21.06.2021. After recording the statement of the prosecution witnesses under Section 161 Cr.P.C., charge sheet has been submitted on 13.07.2021 against the applicant. The Investigating Officer exonerated the two named co-accused persons. Applicant was arrested on 27.05.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the victim is real aunt of the applicant. Age of the victim was 37 years at the time of lodging of the F.I.R. Husband of the first informant namely Ram Kishan executed a registered sale deed dated 24.06.2015 in favour of the mother of the applicant namely Atipyari after taking the consideration. After the death of husband of the first informant, quarrel with the family of the applicant took place for return the land to her and she lodged the first information report against the applicant including his mother and father. It is further submitted that there is no date and time of the alleged offence of rape. It is further submitted that there is material contradictions between the statement of the victim recorded under Section 161 and 164 Cr.P.C. with regard to number of incident. He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) Victim is real aunt of the applicant. Age of the victim was 37 years at the time of lodging of the first information report.

(b) The first information report has been lodged against the applicant and parents of the applicants namely Banwari and Atipyari.

(c) No date and time of incident has been mentioned in the F.I.R. as well as statement of the victim.

(d) Husband of the victim late Ram Kishan executed a registered sale deed on 24.06.2015, in favour of mother of the applicant.

(e) There is material contradiction/improvement between the statements of the victim recorded under Sections 161 and 164 Cr.P.C. and it would not be appropriate to discuss the same at this stage.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Prashant be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 28.4.2022

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