Allahabad High Court
Anup Sahni vs State Of U.P. And 3 Others on 4 August, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:158320
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31930 of 2023
Applicant :- Anup Sahni
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Dashrath Ram
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Dashrath Ram, the learned counsel for applicant and the learned A.G.A. for State.
2. This application for bail has been filed by applicant-Anup Sahni seeking his enlargement on bail in Case Crime No.126 of 2022, under Sections 363, 366, 376-DA, 323, 506 IPC & Sections 5G/6 POCSO Act, Police Station Bansdeeh, District Ballia druing the pendency of trial.
3. Perused the record.
4. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party no.2 on 23.07.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party no.2 to oppose this application for bail.
5. According to the learned counsel for applicant, the applicant is not named in the F.I.R. In fact F.I.R. has been lodged against an unknown person.
6. After aforementioned F.I.R. was lodged, the prosecutrix was recovered and her statement under Section 161 Cr.P.C. was recorded. The same is on record at page 20 of the paper book. The prosecutrix in her aforesaid statement has not implicated the applicant for dislodging her modesty alongwith co-accused Sumanth Sahni. So far as the medical evidence is concerned, the doctor, who medically examined the prosecutrix, did not find any injury on her body, so as to denote commission of sexual assault. Thereafter the statement of the prosecutrix was recorded under Section 164 Cr.P.C., wherein the prosecutrix has implicated the present applicant also for dislodging her modesty. Referring to the judgment of the Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74, he submits that the prosecution of an accused in a case for an offence of rape and sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a circumstance, the statement of the prosecutrix must be clear, consistent and categorical. However, when the aforesaid principle is applied to the facts of the present case, it is apparent that the prosecutrix has departed in her subsequent statement recorded under Section 164 Cr.P.C. from her earlier statement recorded under Section 161 Cr.P.C. As such the subsequent statement of the prosecutrix suffers from the vice of the exaggeration, contradiction and embellishment which remains unexplained up to this stage. He, therefore, contends that since the statements of the prosecutrix referred to above do not fall in the category of an impeccable character, the same cannot be relied upon to maintain the prosecution of the applicant. The medical evidence does not support the charge-sheet so submitted against applicant.
7. Even otherwise applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 29.05.2023. As such, he has undergone more than two months of incarceration. The police report in terms of Sections 173(2) Cr.P.C. i.e. charge-sheet has already been submitted and therefore the entire evidence sought to be relied upon by prosecution against applicant stands crystallized. The prosecutrix has remained consistent in her statements with regard to the co-accused Sumanth Sahni. As such, the case of the present applicant is clearly distinguishable from co-accused Sumanth Sahni. Therefore, he submits that applicant is liable to be enlarged on bail. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.
8. Per contra, the learned A.G.A. has opposed this application for bail. He submits that since applicant is a charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 15 years, therefore, applicant does not deserve any indulgence by this Court. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
9. Having heard the learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record, evidence, nature, and gravity of offence as well as the accusation made coupled with the fact that the applicant is not named in the F.I.R.; the complicity of the applicant in the crime in question has emerged in the subsequent statement of the prosecutrix recorded under Section 164 Cr.P.C., as such there is exaggeration, contradiction and embellishment in the statements of the prosecutrix recorded under Section 164 Cr.P.C., the same has not been explained up to this stage; the judgment of the Supreme Court in Phool Singh Vs. State of M.P. (supra); the period of incarceration undergone; the case of the present applicant being clearly distinguishable from co-accused Sumanth Sahni; the police report in terms of Sections 173(2) Cr.P.C. i.e. charge-sheet has already been submitted and therefore, the entire evidence sought to be relied upon by prosecution against applicant stands crystallized but in spite of above, the learned A.G.A. could not point out any such circumstance necessitating the custodial arrest of applicant during the pendency of trial; the clean antecedents of applicant and the period of incarceration undergone but without making any comment on the merits of the case applicant has made out a case for bail.
10. Accordingly the bail application is allowed.
11. Let the applicantAnup Sahni, be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT 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 AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 4.8.2023
Zafar
