Shyoraj And Another vs State Of U.P. And Another
2022 Latest Caselaw 18532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 1544 of 2022
 

 
Appellant :- Shyoraj And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Vivek Sharma
 
Counsel for Respondent :- G.A.,Mahendra Singh
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vivek Sharma, learned counsel for the appellants, Shri Om Prakash Dwivedi, learned A.G.A. for the State and perused the material on record. None appears for the second respondent even in the revised call.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellants Shyoraj and Kallu @ Tejpal to set aside the impugned order dated 22.2.2022, whereby the Special Judge (SC/ST Act), Sambhal at Chandausi has rejected the bail application No. 27 of 2022 of the appellants moved by them in Case Crime No. 604 of 2021, under Sections 376D, 395, 504, IPC and Section 3(2)(v) of SC/ST Act, Police Station Bahjoi, District Sambhal at Chandausi.

Brief facts of the case are that the first information report dated 26.10.2021 at 10.00 hours was lodged against the appellants and four other named persons by the victim stating that on 25.10.2021 at about 9.30 p.m. the appellants and four other named accused persons having country made pistols in their hands, entered into the house of the first informant forcibly, abused her and asked about her husband Rajendra. When she told that her husband had gone to meet the relatives, on the gun point they brought the mother-in-law, sister-in-law and children of the first informant in a room and closed the door. Co-accused Hargyan was standing there. Co-accused Rajendra and appellants brought the first informant in another room and committed rape with her. It is further submitted that co-accused Satish and Kurru looted Rs. 50,000/- and gold and silver ornaments from her house. The appellants and co-accused persons were identified by the victim in the light of bulb.

After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 26.10.2021. Medical examination of the victim was also conducted on 26.10.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 27.10.2021. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellants and other four named accused persons on 26.1.2022. The appellants were arrested on 27.1.2022.

Learned counsel for the appellants submits that the appellants are innocent and have been falsely implicated in the present case due to ulterior motive. It is further submitted that the present FIR was lodged as a counter blast case of case crime No. 602 of 2021, which was lodged on 24.10.2021 by the wife of co-accused Rajendra against husband of the first informant, Jasveer and Sumit under Section 376D, IPC and Section 3(2)(v) of SC/ST Act with regard to the incident dated 14.10.2021.

It is further submitted that there is material contradiction or improvement between the allegation of first information report, statements of the victim recorded under Sections 161 & 164, Cr.P.C. Firstly, she stated that co-accused Rajendra and the appellants committed rape with her, secondly, she stated that co-accused Rajendra, Hargyan and Shyoraj committed rape with her. It is further submitted that as per medical report of the victim dated 26.10.2021, no external injury was found on the body of the victim.

It is further submitted that after completing the investigation, Section 395, IPC was deleted. It is further submitted that the victim is a married lady having children. It is further submitted that the mother-in-law, sister-in-law and children have not received any injury in the incident. It is further submitted that co-accused Rajendra was implicated in another case of murder by the first informant's side. It is further submitted that co-accused Hargyan having similar role and Kurru and Babloo Gurjer @ Sachin Kumar, who were implicated by the victim in her statement recorded under Section 164, Cr.P.C., have been granted bail by a Coordinate Bench of this Court vide orders dated 14.9.2022, 31.8.2022 and 17.8.2022 in Criminal Appeal Nos. 1799 of 2022, 1534 of 2022 & 2858 of 2022 respectively. It is further submitted that the appellants are languishing in jail since 27.1.2022. The appellants have no criminal history.

It is further submitted that there is no possibility of the appellants of fleeing away after being released on bail or tampering with the witnesses. In case the appellants are enlarged on bail, they shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicants. But he could not point out any material to the contrary. He further submits that in case the applicants are released on bail, they 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) Wife of co-accused Rajendra lodged an FIR registered as case crime No. 602 of 2021 against husband of the first informant, Jasveer and Sumit under Section 376D, IPC and Section 3(2)(v) of SC/ST Act with regard the incident dated 14.10.2021;

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

(c) The victim is a married lady having children;

(d) Co-accused Hargyan having similar role and Kurru and Babloo Gurjer @ Sachin Kumar, who were implicated by the victim in her statement recorded under Section 164, Cr.P.C., have been granted bail by a Coordinate Bench of this Court vide orders dated 14.9.2022, 31.8.2022 and 17.8.2022 in Criminal Appeal Nos. 1799 of 2022, 1534 of 2022 & 2858 of 2022 respectively.

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 22.2.2022 is set aside.

Let appellants/applicants, Shyoraj and Kallu @ Tejpal be released on bail in the aforesaid case crime number on their 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 applicants 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 them from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicants shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicants 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 applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.

(vi) The applicants 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 applicants 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 applicants, 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 :- 23.11.2022

T. Sinha