Smt. Krishna vs State Of U.P. And 3 Others
2022 Latest Caselaw 2159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3163 of 2022
 

 
Applicant :- Smt. Krishna
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Sunil Vashisth,Rohit Nandan Pandey
 
Counsel for Opposite Party :- G.A.,Tanisha Jahangir Monir
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Sunil Vashisth and Sri Rohit Nandan Pandey, learned counsel for the applicant, Sri Gautam Dubey, Advocate holding brief of Sri Tanisha Jahangir Monir, learned counsel for the opposite party nos. 3 and 4 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 Smt. Krishna under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 290 of 2017 for offence punishable under Sections 376, 120B of the Indian Penal Code and Section 3/4 as well as 16/17 of POCSO Act registered at Police Station Sihani Gate, District Ghaziabad, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions/Special Judge (POCSO Act), Court No. 3, Ghaziabad vide order dated 15.12.2021.

Brief facts of the case are that the first information report dated 01.03.2017 has been lodged against the applicant and other co-accused Jitendra @ Raghav by the father of the victim stating that on 18.02.2017 younger daughter of the first informant aged about 17 years has gone to attend the marriage ceremony of his elder daughter's sister-in-law. On 22.02.2017 co-accused Jitendra @ Raghav committed rape with younger daughter in the night, when he reached the place of incident, she told the whole incident.

After lodging of the first information report, the statement of victim under Section 161 Cr.P.C. has been recorded on 01.03.2017. Medical examination was conducted on 02.03.2017. Statement of the victim under Section 164 Cr.P.C. recorded on 09.03.2017. After recording the statement of the prosecution witnesses charge sheet has been submitted on 17.09.2017 against the applicant and other two persons. The applicant was arrested on 10.12.2021.

Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated due to ulterior motive. The applicant is mother-in-law of the elder daughter of the first informant. As per the allegations of the first information report, there is no other allegation except the conspiracy against the applicant. The first information report has been lodged after 7 days of the incident. The age of the applicant is about 60 years. As per school certificate age of the victim was 17 years and 2 months and as per ossification report, the age of the victim was 21 years at the time of incident. It is further submitted that that co-accused Jitendra @ Raghav granted bail by the co-ordinate Bench of this Court passed in Criminal Misc. Bail Application No. 34779 of 2017 on 09.10.2017. It is further submitted that there is material contradictions between the statement of the victim recorded under Sections 161 and 164 Cr.P.C.He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, she shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the opposite party nos. 3 and 4 have 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 F.I.R. 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) Applicant is mother-in-law of elder daughter of the first informant. At the time of incident, as per school certificate, the age of the victim was 17 years and 2 months and as per ossification report victim was 21 years old at the time of incident.

(b) There is material contradictions 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.

(c) Main accused Jitendra @ Raghav granted bail by the co-ordinate Bench of this Court.

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, Smt. Krishna be released on bail in the aforesaid case crime number on her 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 her 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 she 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 her 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 :- 6.5.2022/AKT