Anil vs State Of U.P., Through Principal ...
2022 Latest Caselaw 3545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54223 of 2021
 

 
Applicant :- Anil
 
Opposite Party :- State Of U.P., Through Principal Secretary (Home), U.P.
 
Counsel for Applicant :- Kamlesh Kumar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Kamlesh Kumar Tiwari, 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 Anil under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 135 of 2021 for offence punishable under Sections 376D, 366, 452 of the Indian Penal Code, registered at Police Station Belghat, District Gorakhpur, during pendency of the trial, after rejecting the bail application of the applicant by Incharge Sessions Judge, Gorakhpur vide order dated 3.11.2021.

Brief facts of the case are that the First Information Report dated 14.9.2021 has been lodged by the victim against the applicant, his brother Raja Ram, uncle Lalji and unknown persons stating therein that on 13.9.2021, she was sleeping in the courtyard of the house near the cot of her mother and other family members. At about 11.00 p.m., applicant along with co-accused Raja Ram and Lalji and other unknown persons entered into the house of the victim, caught her mouth and took her in the agriculture field near the tree of Eucalyptus situated in the south portion of her house and committed gang rape with her. Sister-in-law of the victim received a call on her mobile informing by someone to reach at the place of incident and pick up the victim. After that the family members of the victim reached on the spot and informed the police on 112 number.

After lodging of the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 15.9.2021. Medical examination of the victim was conducted on 15.9.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 23.9.2021. Second statement of the victim was also recorded on 8.10.2021. After recording the statements of the first informant and other prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted against the applicant and two other named persons on 6.11.2021. The applicant was arrested on 5.10.2021.

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 the victim was admittedly major at the time of incident. As per allegation of the first information report, the victim was sleeping in the courtyard of her house near the cot of her mother and other family members. Other co-accused Raja Ram is real brother of the applicant and co-accused Lalji is real uncle of the applicant. There is material contradictions in the statement of the victim recorded under Sections 161 & 164, Cr.P.C. with regard to the incident of gang rape. In her statement recorded under Section 164, Cr.P.C., the victim has not identified the place of incident and the accused persons. It is further submitted that PW-1, victim and PW-2 mother of the victim have not supported the prosecution case in their statements recorded before the trial court and they have been declared hostile. It is further submitted that co-accused Raja Ram has not been arrested by the police due to his illness and treatment. It is further submitted that the victim has love affairs and physical relations with one Arjun. When the family members found the victim badly injured, the victim has falsely implicated the applicant in the present case for saving her lover Arjun.

He has next argued that the applicant has criminal history of three other cases, which are related to Excise Act. Criminal history of the applicant has been explained in paragraph No. 7 of the rejoinder affidavit. If the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. 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) There is material contradiction in the statements of the victim recorded under Sections 161 & 164, Cr.P.C. with regard to place of incident and offence of gang rape. The victim did not recognize as to who had committed rape with her;

(b) PW-1, victim and PW-2, mother of the victim have not supported the prosecution case in their statements recorded before the trial court and they have been declared hostile.

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, Anil 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 :- 20.5.2022

T. Sinha