Dharmendra @ Kammu Rathor vs State Of U.P. And Another
2022 Latest Caselaw 16652 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4745 of 2022
 

 
Appellant :- Dharmendra @ Kammu Rathor
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Tarun Kumar Tripathi
 
Counsel for Respondent :- G.A.,Ajay Singh
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Tarun Kumar Tripathi, learned counsel for the appellant, Shri Om Prakash Dwivedi, learned A.G.A. for the State and perused the material on record. Even in the revised call, none has appeared on behalf of the second respondent.

The present criminal appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant, Dharmendra @ Kammu Rathor, to set aside the impugned order dated 26.05.2022, whereby the Special Judge (SC/ST Act), Jalaun at Orai has rejected the bail application No. 105 of 2022 of the appellant moved by him in Case Crime No. 38 of 2022, under Sections 452, 376D, 506 IPC and Section 3(2)(v) of the S.C./S.T. Act, Police Station Rampura, District Jalaun.

Brief facts of the case are that the first information report dated 06.04.2022 was lodged on the basis of an application under Section 156 (3) Cr.P.C against the appellant, one named accused and two unknown accused stating therein that on 24.01.2022, co accused Shri Narayan had entered into the house of first informant and committed marpet and looted some articles. The victim made complaint to the police station concerned with regard to the said incident but the police neither lodge F.I.R nor took any action in the matter. Due to this enmity, on 21.02.2022 at 10.00 pm the victim and her children were in her house and her husband went to the house of his relative. Her two son and one daughter were sleeping inside the house then the appellant, Shri Narayan along with two unknown accused persons entered into her house and they caught her when she tried to make noise, the appellant took her on the point of country made pistol and committed rape on her and left the spot threatening to kill her if she raises noise.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 11.04.2022. The victim was medically examined on 12.04.2022. Statement of the victim under Section 164, Cr.P.C. also was recorded on 12.04.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant on 15.06.2022. The appellant was arrested on 21.04.2022.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that incident occurred on 01.02.2022 between the alleged victim as well as co-accused Sri Narayan in regard to transaction of money for selling buffalo and police challaned the co-accused Sri Narayan under Section 151/ 107/116 Cr.P.C. It is further submitted that the victim was 32 years old lady having three children and her elder daughter is 13 years old. It is further submitted that the age of the appellant is 22 year at the time of the alleged incident and due to enmity as the father of the appellant took surety of the co-accused Sri Narayan under Sections 151/107/116 Cr.P.C.

It is further submitted that as per statement of the victim recorded under section 161 Cr.P.C, she has relation with the co-accused Sri Narayan prior to one and half years of the alleged incident. It is further submitted that there is material contradiction/ improvement in the statements of victim recorded under section 161 and 164 Cr.P.C. It is further submitted that no F.I.R. has been lodged with regard to the alleged incident dated 24.1.2022. It is further submitted that the victim is known to the appellant prior to one year of the of the alleged incident. It is further submitted that the appellant is languishing in jail since 21.04.2022. The appellant has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged 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. 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 victim was 32 years old at the time of the lodging of the FIR;

(b) as per statement of the victim recorded under section 161 Cr.P.C., she was well- known to co-accused Sri Narayan prior to one and half year of the alleged incident and made physical relation with co-accused Sri Narayan on her own consent;

(c) there is no F.I.R. in regard to incident dated 24.01.2022;

(d) there is material contradiction/improvement between the statements of the victim recorded under Section 161 & 164, Cr.P.C. It would not be appropriate to discuss the same at this stage;

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 criminal appeal is allowed and impugned order dated 20.4.2022 is set aside.

Let appellant/applicant, Dharmendra @ Kammu Rathor 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 :- 11.11.2022

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