Chandrapal Tripathi vs State Of U.P.
2022 Latest Caselaw 4706 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43281 of 2021
 

 
Applicant :- Chandrapal Tripathi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- P.K. Singh,Dev Prakash Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri P.K. Singh, learned counsel for the applicant and Sri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the record of the case.

The present bail application has been filed on behalf of applicant Chandrapal Tripathi under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 316 of 2021, under Sections 452, 376, 504, 506 of the Indian Penal Code, registered at Police Station Kotwali Karvi, District Chitrakoot, during pendency of the trial, after rejecting the bail application of the applicant by Incharge Sessions Judge, Chitrakoot vide order dated 18.09.2021.

Brief facts of the present case are that the first information report dated 23.08.2021 at 12:40 hours has been lodged against the applicant under Sections 452, 376, 504, 506 of I.P.C by the victim stating that on 23.08.2021 at about 12:30 a.m. applicant entering to the house of the victim and switched of the light. At that time the victim was sleeping on a cot, the applicant caught hold her hand she awake and cry, after that the applicant committing rape with her. It is further alleged that at that time the daughter of the victim was sleeping on the same cot. After that the applicant has abused her and thereafter threatening for dire consequences and ran away from the spot.

After lodging the first information report statement of the victim under section 161 Cr.P.C. has been recorded on 23.08.2021. Medical examination of the victim has been conducted on 24.08.2021 at 2:00 p.m. Statement of the victim under section 164 Cr.P.C. has been recorded on 26.08.2021. After recording the statements of other prosecution witnesses under Section 161 Cr.P.C., the Investigating Officer has submitted the charge-sheet against the applicant on 09.09.2021. The applicant was arrested on 27.08.2021.

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 allegation of the first information report at the time of committing of offence of rape minor daughter of the victim was sleeping on the same cot. It is further argued that the victim has denied to cooperation to took the swabs sticks from his stains on the body (blood semen, foreign material, others) at the time of medical examination. It is further argued that the aforesaid swabs have not been collected during her medical examination on denial of the victim. It is further argued that as per statement of the victim husband of the victim has died 5 years back to lodging of the first information report and his son has died two years prior to lodging of the first informant report. It is further argued that the victim well known to the applicant and his mother who occasionally came to the house of the victim. It is further argued that the victim has not supported the prosecution case in her cross examination as PW-1. It is further argued that the daughter of the victim has also not supported the prosecution case in her statement recorded as PW-2 and declared hostile by the prosecution. The certified copy of the statement of PW-2 is taken on record. The applicant has no criminal history and he is languishing in jail since 27.08.2021. He has not convicted by any court in any cognizable offence and 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. 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) The first information report has been lodged by the victim stating that at that time of committing rape by the applicant, minor daughter of the victim was sleeping on the same cot.

(b) The victim was major and her husband has died 5 years back from lodging of the first information report.

(c) The victim has denied swabs for chemical examination.

(d) The victim as PW-1 has not supported the prosecution case in her statement recorded in cross examination.

(e) Daughter of the victim as PW-2 has not supported the prosecution case and declared hostile by the prosecution.

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, Chandrapal Tripathi 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 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 :- 31.5.2022

Vikram