Krishna Gopal In Fir Kishanpal vs State Of U.P.
2022 Latest Caselaw 13843 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1294 of 2021
 

 
Applicant :- Krishna Gopal (In Fir Kishanpal)
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Bhagwati Prasad Nigam,Narvind Kumar Singh
 
Counsel for Opposite Party :- G.A.,Manish Srivastava
 

 
Hon'ble Shamim Ahmed,J.

List has been revised.

Learned counsel for the applicant has filed supplementary affidavit today in Court. The same is taken on record.

Heard Sri Narvind Kumar Singh, learned counsel for the applicant and Sri Akhilesh Kumar Vyas, learned A.G.A. for the State and perused the record.

The applicant, Krishna Gopal ( In F.I.R. Kishanpal), has moved the present bail application seeking bail in Case Crime No. 375 of 2020, under Sections 452, 376, 323 I.P.C. Police Station Shahabad, District Hardoi.

Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the present due to enmity and village rivalry. No such incident took place as alleged by the prosecution. The F.I.R. has been lodged with the intention to defame the image of the applicant and his entire family in the society.

Learned counsel for the applicant further submits that the allegation in the F.I.R. regarding commission of rape is also false and fabricated. He further submits that the victim in her statement recorded under Section 161 Cr.P.C. has not said anything regarding commission of rape and she only stated that the applicant put the clothes in her mouth and thereafter when she raised voice he ran away from the house, whereas she developed her case and took somersault while recording her statement under Section 164 Cr.P.C. on the pressure created by the parents and she made an allegation of rape against the applicant, whereas the allegation of rape as levelled by the victim in her statement recorded under Section 164 Cr.P.C. got demolished after perusal of the medical report.

Learned counsel for the applicant further submits that as per the medical report no bleeding or any injury was present at the time of examination of body and there is no any external or internal injury found on the person of the victim, hymen was also not present. He further submits that there is no live or dead spermatozoa seen and urine pregnancy test is also came negative. As per medical examination report the age of the victim is 19 years, thus she is major and knew her consequences very well.

Learned counsel for the applicant further submits that as per the averment of the victim, the parties appears to be consenting party, because the incident was seen by the parents, thus the allegation was levelled against the applicant on the pressure created by the parents and the applicant was falsely implicated in the present case.

Learned counsel for the applicant further submits that the applicant is in jail since 08.07.2020 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

Learned counsel for the applicant further submits that ratio of law applicable in above those cases is also applicable in the case of the applicant, therefore, the applicant be enlarged on bail by this Court sympathetically.

Several other submissions regarding legality and illegality of the allegations made in the F.I.R. have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused, have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that criminal history of applicant has been explained in para-14 of the affidavit filed in support of the bail application. The applicant is in jail since 08.07.2020 and that in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

Learned A.G.A. opposed the prayer for bail and submitted that the allegation against the applicant is henious, therefore, his bail application may be rejected.

After perusing the record in the light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, considering the fact that there is contradiction in the statement of the victim recorded under Section 161 and 164 Cr.P.C.; the allegation of rape has been levelled got demolished after perusal of the medical report, wherein the doctor has given his opinion that no bleeding or any injury was present at the time of examination of body and there is no any external or internal injury found on the person of the victim, hymen was also not present; no live or dead spermatozoa seen and urine pregnancy test is also came negative; as per medical examination report the age of the victim is 19 years, thus she is major and knew her consequences very well; from the averment of the victim the parties appears to be consenting parties and considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the cases of Kamal (supra), Takht Singh (supra) and Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

The prayer for bail is granted. The application is allowed.

Let the applicant, Krishna Gopal ( In F.I.R. Kishanpal), involved in Case Crime No. 375 of 2020, under Sections 452, 376, 323 I.P.C. Police Station Shahabad, District Hardoi be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(5) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(6) 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 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(8) 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.

It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 27.9.2022

Arvind