Raja @ Raja Patel vs State Of U.P.
2023 Latest Caselaw 27397 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:193332
 
Reserved on:-26.09.2023
 
Delivered on:-06.10.2023
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38361 of 2023
 
Applicant :- Raja @ Raja Patel
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Amrita Kashyap
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Rajeev Misra,J.

1. Heard Mrs. Amrita Kashyap, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Raja @ Raja Patel seeking his enlargement on bail in Case Crime No. 2 of 2023, under Section 376 IPC, Police Station-Taryasujan, District-Kushinagar during the pendency of trial.

4. Record shows that an FIR dated 02.01.2023 was lodged by first informant-Suman Devi (Bhabhi of the prosecutrix) and was registered as Case Crime No. 2 of 2023, under Section 376 IPC, Police Station-Taryasujan, District-Kushinagar. In the aforesaid FIR, applicant-Raja @ Raja Patel has been nominated as solitary named accused.

5. The gravamen of the allegations made in the FIR is to the effect that named accused has maintained physical relations with the prosecutrix for the last 2 years. On account of above, the prosecutrix has come in family way. Even though, the prosecutrix is ready and willing to marry the accused. However, he is refusing to solemnize marriage with the prosecutrix.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 25 of the paper book. The prosecutrix in her aforesaid statement has supported the FIR. Thereafter, the Ultra Sound of the prosecutrix was conducted. As per the USG report, the age of the Embryo was reported to be 31 weeks. As per the medical determination of age, the prosecutrix was said to be about 18 to 22 years. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., wherein she has not only supported the FIR by rejoining her previous statement under Section 161 Cr.P.C. but has also detailed the manner of occurrence.

7. During course of investigation, Investigating Officer examined the first informant, who has also supported the FIR. On the basis of above and other material collected by the Investigating Officer, during the course of investigation, he came to the conclusion that complicity of applicant in the crime in question is fully established. He, therefore, submitted the charge sheet, whereby applicant has been charge sheeted under Section 376 IPC.

8. Learned counsel for applicant contends that applicant is a named/charge sheeted accused yet he is liable to be enlarged on bail. Applicant is innocent. He has been falsely implicated in aforementioned case crime number. As per the medical opinion, the prosecutrix is aged about 18 to 22 years. As such, she is major. Referring to the FIR and the statements of the prosecutrix as noted above, it is contended by the learned counsel for applicant that the prosecutrix is a willing and consenting party. As such, no offence as alleged is made out against applicant as applicant cannot be said to be guilty of dislodging the modesty of the prosecutrix by committing deliberate and forceful sexual assault upon the prosecutrix by committing rape upon her.

9. 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 07.04.2023. As such, he has undergone more than 5 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named/charge sheeted accused, therefore, he does not deserve any indulgence by this Court. He submits that applicant extended the promise of marriage to the prosecutrix and it is on that basis that the parties maintained physical relations. It is an undisputed fact that on account of act of applicant, the prosecutrix has now come in family way. However, applicant has resiled from the promise so made to the prosecutrix. Up to this stage, there is nothing on record to infer that no promise was made by the applicant to the prosecutrix to marry her or the alleged promise is false. Attention of Court was then invited to the following judgments of Supreme Court;-

(i). Sonu alias Subhash Kumar Vs. State of U.P., 2021 SCC OnLine SC 181,

(ii). Pramod Suryabhan Pawar Vs. State of Maharashtra, 2019 SCC OnLine SC 1073,

(iii). Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108,

(iv). Mandar Deepak Pawar Vs. State of Maharashtra and Another, 2022 Live Law (SC) 649 &

(v). Naim Ahmed Vs. State (NCT of Delhi), 2023 SCC OnLine SC 89

11. According to the learned A.G.A., the issue as to whether a false promise of marriage was made or not or whether the applicant has resiled from the promise so made is intricate questions of fact which can be answered appropriately only during course of trial. Considering the fact that the prosecutrix is a young girl aged about 18 to 22 years (as per the medical opinion) and up to this stage, there is nothing on record to infer false or malicious prosecution of the applicant, the prosecutrix being in family way, which is of advanced stage, therefore, no sympathy be shown by this Court in favour of applicant.

12. When confronted with above, the learned counsel for applicant could not overcome the same.

13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of applicant, accusations made coupled with the fact that the prosecutrix is a willing and consenting girl of 18 to 22 years of age (as per the medical opinion), on account of promise made by the applicant that he shall marry the prosecutrix, the prosecutrix entered into physical relations with the applicant, on account of act of applicant, the prosecutrix has come in family way, the age of the Embryo is reported to be more than 31 weeks as per the USG report, up to this stage, no such material has been brought on record on the basis of which, it could be inferred that no promise as alleged was made by the applicant or that the prosecution story as unfolded in the FIR is false or the prosecution of the applicant is malicious, therefore, irrespective of the submissions urged by the learned counsel for applicant in support of the present application for bail, this Court does not find any good or sufficient ground to enlarge the applicant on bail.

14. As a result, present application for bail fails and is liable to be rejected.

15. It is accordingly rejected.

Order date:-06.10.2023

Vinay