Dileep Kushwaha vs State Of U.P. And Another
2022 Latest Caselaw 18876 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 
Case :- CRIMINAL APPEAL No. - 4844 of 2022
 
Appellant :- Dileep Kushwaha
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Nanhe Lal Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Compliance affidavit filed by the learned A.G.A. is taken on record along-with service of notice upon respondent no. 2.

Heard Shri Nanhe Lal Tripathi, learned counsel for the appellant and Shri Ravindra Kumar Singh, learned A.G.A. for the State and perused the material on record.

Despite service of notice as informed by the learned A.G.A., no one has appeared on her behalf.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Dileep Kushwaha to set aside the impugned order dated 20.06.2022 whereby the Special Judge (SC/ST Act)/ Additional Sessions Judge, Lalitpur has rejected the bail application No. 727 of 2022 of the appellant moved by him in Case Crime No. 268 of 2022, under Sections 341, 376, 323, 504, 506 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Kotwali, District- Lalitpur.

Brief facts of the case are that the first information report dated 12.05.2022 at 21:59 hours was lodged by the victim stating therein that on 10.05.2022 at about 10 P.M. the victim was going to her sister-in-law's (Nanad) house situated at Nehrunagar, on the way the appellant caught hold and forcibly bought to his four wheeler, after that the appellant committed rape with her and abused her caste derogatory words and committed marpit and threatened her with dire consequences. Anyhow, she escaped herself.

After lodging the first information report, medical examination of the victim was conducted on 13.05.2022; statements of the victim under Section 161 & 164 Cr.P.C. was recorded on 16.05.2022 and 18.05.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant on 24.05.2022. The appellant was arrested on 13.5.2022.

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 victim was married lady and 28 years old having two children at the time of the incident and the appellant was 26 years old at the time of the incident and the appellant run a grocery shop in the same colony. It is further submitted that the present first information report was lodged in a counterblast Complaint Case No. 9146 of 2021, which was instituted by the appellant against the victim and his brother under Sections 406 and 504 of I.P.C. with regard to demand of Rs. 2,026/- which is pending before the concerned Magistrate.

It is further submitted that as per medical report, no external injury was found on the body of the victim. It is further submitted that the prosecution improves its case after recording the statement of the daughter of victim, wherein she stated that she was present at the place where the appellant bought to the victim by a four wheeler.

It is further submitted that during investigation, the Investigating Officer found that the appellant did not have any white colored four wheeler. It is further submitted that the appellant alone caught hold the victim and bought by a four wheeler and committed rape it seems to be improbable. There is material contradiction/ improvement between the allegation of F.I.R. and statements of the victim recorded under Sections 161 and 164 of Cr.P.C. Firstly, she alleged that she was going alone to the house of her sister-in-law. Secondly, she stated that she was going to the house of her sister-in-law along-with her daughter aged about 9 years.

It is further submitted that the victim has lodged an F.I.R. against one Dharmendra Kumar being Case Crime No. 16 of 2018, under Sections 376, 328, 506 of I.P.C. Police Station- Jakhlon, District- Lalitpur. It is further submitted that one Smt. Hirabai was also filed a Complaint Case No. 63 of 2019, under Section 392 of I.P.C. against the victim before the Additional Sessions Judge (Dacoity Affected Area), Lalitpur.

It is further submitted that the appellant is languishing in jail since 13.05.2022. 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 Special Judge 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 age of the victim was 28 years old at the time of the incident and the appellant was 26 years old at the time of the incident and running a grocery shop in the same colony

(b) The appellant was instituted a Complaint Case No. 9146 of 2021, against the victim and his brother under Sections 406 and 504 of I.P.C. on 08.11.2022.

(c) There is material contradiction/ improvement between the allegation of F.I.R. and statements of the victim recorded under Sections 161 and 164 of Cr.P.C., it would not be appropriate to discuss the same at this stage.

(d) One Smt. Hirabai was also filed a Complaint Case No. 63 of 2019, under Section 392 of I.P.C. against the victim before the Additional Sessions Judge (Dacoity Affected Area), Lalitpur.

(e) As per medical report, no external injury was found on the body of the victim.

(f) The appellant is languishing in jail since 13.05.2022.

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 20.06.2022 is set aside.

Let appellant/applicant, Dileep Kushwaha 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 :- 28.11.2022/Ishan