Subhash Chaurasiya vs State Of U.P. And 3 Others
2022 Latest Caselaw 526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 301 of 2022
 

 
Applicant :- Subhash Chaurasiya
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Ayush Mishra,Yogendra Misra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Yogendra Misra, learned counsel for the applicant 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 Subhash Chaurasiya under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 300 of 2021 for offence punishable under Sections 323, 504, 376D, 506 of the Indian Penal Code and Section 5/6 Protectuion of Children from Sexual Offences Act, registered at Police Station Naini, District Prayagraj during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge/ Special Judge (POSCO Act), Allahabad vide order dated 23.11.2021.

Brief facts of the case are that the First Information Report dated 01.04.2021 has been lodged by the victim, aged about 15 years against the applicant, Deepak Chaurisia, Munna Chaurisia and one unknown person under sections 147, 323, 325, 504, 506, 376, I.P.C. stating therein that the applicant, co-accused Deepak Chaurisia, Subhash Chaurisia, neighbours of the victim, who nurtured bad eye on her, taking plea of playing colour entered into her house on 29.03.2021 i.e. Holi festival at about 1.15 P.M. At that time victim was sweeping floor. They caught her tightly and pressed their hands into her blouse so as to colour her breasts and co-accused Deepak Chaurisia forcibly attempted to rub her private parts after losing her salwar due to which victim fell down and started crying. On hearing her hue and cry, her parents rushed there, then the accused persons including the applicant fled away after giving threat to her. A complaint had been made by the father of the victim at Naini Police Station, but instead of taking any action against accused persons, her father had been illegally detained whole night till next day in the police station. On 01.04.2021 at about 5.15 P.M, applicant, co-accused Deepak Chaurisia, Munna Chaurisia and two unknown persons entered into her house and after dragging her on earth started assaulting her by fists and kicks. When her family members intervened to save her, then the applicant and co-accused Deepak Chaurisia, who were already taken danda in their hands, attacked upon her severely due to which legs of the victim were broken. Deepak chaurasia also tried to hit upon her head as the victim fell down unconsciously hence, she received injury on her shoulder.. On hearing her cry, mob assembled and the applicant and other co-accused persons managed to escape from the spot threatening the whole family with dire consequences.

After lodging the first information report, statement of the victim under 161 Cr.P.C. was recorded on 02.04.2021. Medical examination of the victim was conducted d on 06.04.2021 at 10.45 am. Statement of victim under Section 164 Cr.P.C has been recorded on 07.06.2021. After recording the statement of prosecution witnesses under section 161 Cr.P.C, charge sheet has been filed against the applicant and two other named persons on 23.10.2021. The applicant was arrested on 20.10.2021.

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 as per statement of victim recorded under section 161 Cr.P.C. wherein the victim stated that she received injuries on her leg and shoulder but in the medical examination, there is no whisper about any injury on her legs and shoulder and simple medical examination has been conducted after five days of the alleged incident. It is further submitted that there are material contradiction/ improvement in the statements of victim recorded under section 161 and 164 Cr.P. It is further submitted that as per School Certificate, date of birth of victim is 16.07.2003 as such, victim is 18 years of old at the time of incident. It is further submitted co-accused Deepak Chaurisia is the brother of the applicant.

He has next argued that the applicant has no criminal history to his credit. if the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. 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 has not received any injury on her legs and shoulder;

(b) medical examination with regard to sexual assault has been conducted after five days of the alleged incident;

(c) there are material contradiction/improvement in the statement of victim recorded under section 161 and 164 Cr.P.C; it would not be appropriate to discuss the same at this stage;

(d) co-accused Deepak Chaurisia is the brother of the applicant.

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, Subhash Chaurasiya 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/endeavour 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 alongwith 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 :- 6.4.2022/aks