Allahabad High Court
Devmani Tiwari Alias Munna vs State Of U.P. Thru. Prin. Secy. ... on 18 August, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:54991
Court No. - 27
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1362 of 2023
Applicant :- Devmani Tiwari Alias Munna
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Secrett. Lko. U.P.
Counsel for Applicant :- R.B.S. Rathaur,Arun Kumar,Mahendra Bahadur Singh,Rakesh Kumar
Counsel for Opposite Party :- G.A.,Anand Prakash Pandey,Dr.Surya Prakash Mishra
Hon'ble Brij Raj Singh,J.
1. Heard Shri Arun Kumar, learned counsel for the applicant as well as Shri Omkar Nath, learned A.G.A. for the State and perused the record.
2. This bail application has been filed seeking release of accused/applicant Devmani Tiwari Alias Munna on bail, in Case Crime No. 186 of 2022, under Sections 376, 506 and 343 I.P.C. Police Station Jahangirganj, District Ambedkar Nagar.
3. Learned counsel for the applicant submitted that the First Information Report was lodged by the victim and her statement under Section 164 Cr.P.C was recorded in which she has deposed before the Court that the applicant was known to her and she used to talk to him on mobile phone. She further deposed that she was called by the applicant to Bhujaiya Mata Temple in the morning where she went and married to the applicant in the presence of parents of the applicant. Thereafter, the victim had gone to the applicant's house. Learned counsel for the applicant further submitted that the victim came to know that it was the second marriage of the applicant therefore, she lodged the report against the applicant. The applicant's counsel has taken plea in the rejoinder affidavit that the prosecutrix belongs to the residence of applicant's nanihaal and they both knew and were familiar to each other. The prosecutrix intentionally and knowingly had married the applicant and physical relation was established between them and it is not at all a case of rape, rather it is a case of consent.
4. Learned counsel for applicant further invited attention of Court towards the statement of prosecutrix made before the trial Court that she used to talk to the applicant for the last one year. She further stated that for three days, she remained in the house of the applicant and performed marital obligations. Learned counsel for applicant further submitted that though it was the second marriage of the applicant, but the offence under Section 375 I.P.C is not made out, as the physical relation was established out of consent and it cannot be said that rape was committed on the prosecutrix. The prosecutrix belonged to the applicant's maternal uncle's village and she knew the applicant from much before. Learned counsel for applicant further stated that the medical report of the prosecutrix is also not supporting the prosecution case and has further submitted that at the most, case under Section 494 I.P.C. is made out, but the chargesheet was not filed under Section 494 I.P.C, rather it was filed under Section 376, 343 and 506 I.P.C.
5. Learned counsel for applicant has relied on judgments of Hon'ble Supreme Court passed in Sonu @ Subhash Kumar versus State of Uttar Pradesh and Anr in Criminal Appeal No. 233 of 2021 as well as Deepak Gulati versus State of Haryana in Criminal Appeal No. 2322 of 2010. Learned counsel for applicant further submitted that the applicant has no criminal history and he is languishing in jail since 01.11.2022.
6. Learned A.G.A. has opposed the prayer for grant of bail and has submitted that after looking into the statement of prosecutrix recorded under Section 164 Cr.P.C as well as her statement recorded before the trial Court, it is apparent that it was the second marriage of the applicant and the applicant, on the pretext of marriage and false promises, had established physical relation with the prosecutrix, thus the act of the applicant comes under the purview of rape. Since the applicant was involved in the commission of crime therefore, he does not deserve mercy of the Court and his bail is liable to be rejected.
7. Considering the facts and circumstances of the case, after perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that it was a case of consent, the argument that the ingredients of Section 375 I.P.C are not made out, considering the statement of prosecutrix recorded under Section 164 Cr.P.C as well as her statement recorded before the trial Court, the fact that the applicant has no criminal history and considering the the judgments of Hon'ble Supreme Court relied upon by learned counsel for applicant, I find it to be a fit case for grant of bail.
8. Accordingly, the bail application is allowed.
9. Let the accused/applicantDevmani Tiwari Alias Munna involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial 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.
(iv) 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 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 him in accordance with law.
10. 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 in this order.
Order Date :- 18.8.2023
DiVYa
