Shailendra @ Sheelu Chaudhary vs State Of U.P.
2023 Latest Caselaw 18280 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:144547
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29512 of 2023
 

 
Applicant :- Shailendra @ Sheelu Chaudhary
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vinod Kumar Tirpathi,Amit Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Heard Sri Vinod Kumar Tripathi, learned counsel for the applicant,Sri Shikhar Tandon, learned counsel for the informant and learned A.G.A. for the State.

There is allegation in the first information report lodged on 07.03.2023 that proseutrix met the applicant first time in the year 2016 and the applicant befriended her. The applicant proposed her and on 10.10.2016 took her to a flat in Ghaziabad, where after giving her some intoxicating cold drink he subjected her to rape. Thereafter applicant assured her of early marriage. While committing her rape he made her obscene video and threatened to make it viral if prosecutrix reveals their relation to anyone. Thereafter applicant committed repeated offence of rape against the victim on the threatening of making her obscene video viral and also threatened her that her brother shall be abducted. In the year 2019 the victim became pregnant because of rape committed by the applicant but her pregnancy was got terminated by applicant by giving her some medicine. He avoided marrying her and after two months, 15 days she became pregnant again and then the victim came to know that applicant is married and having two children and has been raping her all through on false promise of marriage. On 17.02.2023 the applicant came to her house and dispute took place between them. Thereafter he beated her and asked her to get her pregnancy terminated. On 20.02.2023 an application was given by prosecutrix at the police station which was withdrawn by her on the assurance of the applicant that he will marry her. On 22.02.2023 compromise took place between them at the police station. Thereafter the applicant took the victim to an Advocate and took her signatures on some papers stating that court marriage of the victim with the applicant had taken place. Thereafter the applicant started threatening her and refused to marry her. Applicant threatened her and stated that he is builder and will get her murdered. Hence first information report was lodged.

Learned counsel for the applicant submits that there are major contradictions in the statements of the victim recorded under Sections 161 and 164 Cr.P.C and also in the first information report. The victim is aged about 24 years. She entered into physical relation-ship with the applicant with consent. She has refused her medical examination and also refused to give her blood sample for DNA test. She is employee of the applicant. She was not performing her work properly and thereafter the applicant warned her and she made false complaint against him on 20.02.2023 at police station which she was withdrawn by her subsequently on 22.02.2023. First information report is delayed and there is no explanation why from the year 2016 till 2023 victim waited and then lodged the first information report. Learned counsel for the applicant has further pointed out to the statements of independent witnesses who have not supported the allegations made by the victim against the applicant. It has come in their statements that victim was working with the applicant for the last more than four years. Learned counsel for the applicant further submits that only to get undue advantage from the applicant he has been falsely implicated in this case by the prosecutrix.

Learned counsel for the informant has vehemently opposed the bail application. He has submitted that the applicant committed offence of rape against the victim when she was minor. He has submitted that the Apex Court in the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar, 2004 Law Suit(SC)1327 has held that where a promise to marry was made by the accused without any intention to marry the consent of the victim will be considered to be vitiated. He has submitted that in the present case the applicant was married and therefore his promise to marry was not bonafide and it was meant to deceive the victim.

Learned AGA has opposed the prayer for bail but could not dispute the above submissions.

This court after hearing the rival contentions finds that in the present case the promise to marry is being made since 2016 by the victim against the applicant. First Information Report has been in the year 2023. Such a long period taken by the informant to understand that promise of the applicant made to her for marriage was false is not credible. At the most period of a year is sufficient in such relationship to understand the real intent of the promisor. The allegation that the victim came to know that applicant is a married man having children only in the year 2023 is also not a credible allegation. No one will continue in such a long physical relationship without knowing about marital status of the partner promising her to marry. Such relation-ship allegedly started in the year 2016 by the commission of offence of rape and making of some incriminating video of the victim on the basis of which she was subsequently blackmailed and compelled to enter physical relation-ship. No such video was recovered by the Investigating Officer nor the victim claims that she has seen such video made by the applicant. This court further finds that the victim is employee of the applicant who is a builder. The possibility of befriending the applicant for gaining undue advantage and thereafter implicating him for pressurizing him for undue gain cannot be ruled out. The victim became major after two years of the first offence alleged in the year 2016. Why she waited to lodge the first information for such a long period and why she entered into compromise earlier on 22.02.2023 at the police station with applicant has not been explained. Evidence of causing miscarriage of prosecutrix by applicant does not appears proved by any evidence collected by Investigating Officer.

The Apex Court in the cases of Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another, 2021 0 Supreme (SC) 182, Promod Suryabhan Pawar Vs. State of Maharastra and others, MANU/SC/1142/2019, Dhruvaram Murlidhar Sonar Vs. State of Maharastra and others, MANU/SC/1518/2018, Naim Ahamed Vs. State (NCT of Delhi), Criminal Appeal No. 257 of 2023, Shambhu Kharwar Vs. State of Uttar Pradesh and another, 2022 Lawsuit(SC)973 has held that entering into physical relationship on false promise of marriage does not amounts to commission of offence of rape.

Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant, Shailendra @ Sheelu Chaudhary, involved in Case Crime No.151 of 2023, under Sections 376, 506, 323, 328, 313 I.P.C, Police Station Nandgram, District- Ghaziabad be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.

(v) 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.

In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.

Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Order Date :- 20.7.2023

SS