Shobha vs State Of U.P.
2022 Latest Caselaw 2706 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38573 of 2021
 

 
Applicant :- Shobha
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Suneel Kumar Mishra,Santosh Kumar Tripathi
 
Counsel for Opposite Party :- G.A.,Aadesh Kumar Srivastava
 

 
Hon'ble Ashwani Kumar Mishra,J.

Heard Sri Suneel Kumar Mishra and Sri Santosh Kumar Tripathi learned counsel for the applicant, learned AGA for the State, and Sri Aadesh Kumar Srivastava for the informant, and perused the record.

The present bail application has been filed by the applicant seeking enlargement on bail in Case Crime No.160 of 2021, under Section 376D IPC, Police Station Lalganj, District Mirzapur, on the ground that co-accused Rohit Tiwari has already been enlarged on bail in Criminal Misc. Bail Application No.40249 of 2021.

The bail application of the co-accused Rohit Tiwari has been allowed by a detailed order dated 27.4.2022, which is reproduced hereinafter:-

"Rejoinder affidavit filed today by learned counsel for the applicant is taken on record.

Heard Shri O.P. Singh, learned Senior Counsel assisted by Shri Vipin Kumar Singh, learned counsel for the applicant, learned A.G.A. for the State, Shri Aadesh Kumar Srivastava, learned counsel for the first informant and perused the material on record.

The present bail application has been filed on behalf of applicant Rohit Tiwari under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 160 of 2021 for offence punishable under Sections 376D of the Indian Penal Code, registered at Police Station Lalganj, District Mirzapur, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, F.T.C. First, Mirzapur vide order dated 4.8.2021.

Brief facts of the case are that the First Information Report dated 4.7.2021 at 23.23 hours has been lodged by mother of the victim against the applicant and two other named co-accused persons under Section 354Ka and 354Kha, IPC stating therein that on 3.7.2021 at about 9.00 p.m. when her daughter, aged about 18 years, has gone to feed buffalo, the applicant and two other named co-accused persons attempted to rape with her. After some time when the electricity has gone, first informant came out from the house. Hearing the scream of her daughter, when she ran towards her, all the accused persons fled away.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 5.7.2021. Medical examination was conducted on 7.7.2021 at 1.15 p.m. Statement of the victim under Section 164, Cr.P.C. was recorded on 7.7.2021. Second statement of the victim was also recorded on 7.7.2021. After recording the statements of the prosecution witnesses, charge sheet has been submitted against the applicant and two other named co-accused persons on 30.7.2021. The applicant was arrested on 8.7.2021.

Learned Senior counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. As per High School certificate, age of the victim was 18 years 4 months at the time of incident. It is further submitted that as per statement of the victim recorded under Section 161, Cr.P.C., there is no whisper about the allegation of rape against the applicant and other named co-accused persons, which has been recorded after two days of the incident. It is further submitted that mother of the victim/first informant has also not stated about the allegation of rape. It is further submitted that there is material contradiction/improvement in the statements of the victim recorded under Sections 161 & 164, Cr.P.C. and second statement of the victim. It is further submitted that medical examination of the victim was conducted after four days of the incident. Clothes of the victim were not collected during the course of investigation. It is further submitted that prosecution has not mentioned place of incident in the present case. It is further submitted that the victim has love affair with co-accused Indra Kumar and shop of the applicant was situated near the house of the victim. Co-accused Indra Kumar came to the shop of the applicant several times, which was opposed by family members of the victim. Due to this enmity applicant has been falsely implicated in the present case. It is further argued that the FIR has been lodged after about 26 hours of the 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 and submit 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 they could not point out any material to the contrary. They further submit 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) First information report has been lodged under Section 354Ka, 354Kha, IPC after 26 hours of the incident against the applicant and two other named persons;

(b) Victim has not stated about the allegation of rape in her statement recorded under Section 161, Cr.P.C. on 5.7.2021 (after about 48 hours of the incident);

(c) Age of the victim was 18 years 4 months at the time of the incident;

(d) There is material contradiction/improvement in the statements of the victim recorded under Sections 161 & 164, Cr.P.C. and second statement of the victim. It would not be appropriate to discuss the same at this stage;

(e) Medical examination of the victim was conducted after four days of the incident;

(f) Clothes of the victim have not been collected by the I.O.

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, Rohit Tiwari 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."

Learned counsel for the opposite party has not been able to show any distinguishing feature, which may persuade this Court to take a different view. The role of applicant and co-accused Rohit Tiwari as per the FIR seems to be similar.

For the detailed reasons recorded in the order dated 27.4.2022, and on the same terms and conditions, the applicant- Shobha is also entitled to be released on bail. Accordingly, the present bail application is allowed.

Order Date :- 13.5.2022

Anil