Sujeet Kumar Saroj vs State Of U.P. And 3 Others
2023 Latest Caselaw 27565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:194199
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40599 of 2023
 

 
Applicant :- Sujeet Kumar Saroj
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Prabha Shanker Chaturvedi
 
Counsel for Opposite Party :- G.A.,Mamta Singh
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. P.S. Chaturvedi, the learned counsel for applicant, the learned A.G.A. for State and Mrs. Mamta Singh, the learned counsel representing opposite party 2, High Court Legal Services Committee, High Court, Allahabad.

2. Perused the record.

3. At the very outset, the learned A.G.A. contends that notice of present application for bail has been served upon first informant-opposite party 4 on 15.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 4 to oppose this application for bail.

4. This application for bail has been filed by applicant-Sujeet Kumar Saroj, seeking his enlargement on bail in Case Crime No. 212 of 2023, under Sections 376, 506 IPC and Sections 3/4 POCSO Act, Police Station-Nawabgaj, District-Prayagraj during the pendency of trial.

5. Record shows that in respect of an incident, which is alleged to have occurred in between 15.05.2023 to 16.05.2023, a delayed FIR dated 25.05.2023 was lodged by first informant-Smt. Anita Devi (sister of the prosecutrix) and was registered as Case Crime No. 212 of 2023, under Sections 354, 506 IPC and Sections 7/8 POCSO Act, Police Station-Nawabgaj, District-Prayagraj. In the aforesaid FIR, applicant-Sujeet Kumar Saroj has been nominated as solitary named accused.

6. The gravamen of the allegations made in the FIR to the effect that named accused dislodged the modesty of the prosecutrix and made an attempt to commit rape upon her. It is apposite to mention here that the said FIR was lodged by the elder sister of the prosecutrix upon the disclosure made by the prosecutrix herself to her elder sister.

7. 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. wherein the prosecutrix has departed from the prosecution story as unfolded in the FIR. The prosecutrix has now come up with a new story which is totally alien to the allegations made in the FIR and has alleged that she was abducted by 2 persons including the present applicant and thereafter, an attempt was made to dislodge her modesty. Thereafter, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor, who medically examined her, departed from her statement under Section 161 Cr.P.C. as is evident from the recital contained at page 55 of the paper book. The prosecutrix, in her statement before the Doctor, who medically examined her, has now alleged that her modesty was dislodged by named accused namely Sujeet Kumar Saroj i.e. applicant by forcibly and deliberately committing rape upon her. The Doctor, who medically examined the prosecutrix, however, did not find any injury on her body so as to denote commission of deliberate and forceful sexual assault. However, with regard to the private part of the prosecutrix, the Doctor has opined as follows;-

"Hymen - Torn & Healed"

8. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 42 of the paper book. The prosecutrix in her aforesaid statement has departed from her previous statement under Section 161 Cr.P.C. as well as her statement before the Doctor, who medically examined her and has now given the manner of occurrence regarding commission of deliberate and forceful sexual assault by the present applicant, which is contradictory to her previous statement referred to above.

9. During course of investigation, Investigating Officer recovered the High School Certificate of the prosecutrix wherein her date of birth is recorded as 18.02.2006. As such, the prosecutrix was aged about 17 years and 3 months on the date of occurrence. On the above premise, the Investigating Officer came to the conclusion that offence complained of is fully established. He, accordingly, submitted the charge sheet dated 11.07.2023 whereby applicant has been charge sheeted under Sections 376, 506 IPC and Sections 3/4 POCSO Act.

10. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Admittedly, the FIR giving rise to present criminal proceedings was lodged by the sister of the prosecutrix after the disclosure was made by the prosecutrix herself to the first informant. However, in the FIR, which was so lodged upon the disclosure made by the prosecutrix, there is no allegation with regard to the commission of deliberate or forceful sexual assault upon the prosecutrix. Consequently, the FIR was registered neither under Section 376 IPC nor under Sections 3/4 POCSO Act. The prosecutrix in her statement under Section 161 Cr.P.C. has departed from the basic prosecution story as unfolded in the FIR. It is well settled that though the FIR is not the encyclopedia of the prosecution case but it must disclose the basic prosecution case. While the prosecutrix has departed from the basic prosecution case as unfolded in the FIR remains unexplained in her statement under Sections 161 Cr.P.C. itself. Subsequently, the prosecutrix, in her statement before the Doctor, who medically examined her, departed from her previous statement under Section 161 Cr.P.C. and ultimately departed from the said statement in her ultimate statement under Section 164 Cr.P.C. O the above premise, it is thus urged by the learned counsel for applicant that the prosecutrix has not remained consistent and categorical in her statements referred to above.

11. On the above premise, the learned counsel for applicant submits that the statements of the prosecutrix when considered as a whole do not fall in the category of impeccable evidence and therefore, same are unworthy of reliance. According to the learned counsel for applicant, a similar FIR was lodged against the applicant which was registered as Case Crime No. 113 of 2023, under Section 363 IPC. In the aforesaid FIR, applicant was granted bail by this Court vide order dated 10.08.2023 passed in Criminal Misc. Bail Application No. 23819 of 2023 (Manoj Saroj Vs. State of U.P. And 3 Others). For ready reference, the same is reproduced hereinunder:-

"1. Heard learned counsel for the applicant, Sri Adesh Kumar Srivastava, learned counsel for the complainant, Smt. Beena Mishra, learned counsel for the High Court Legal Services Committee, High Court, Allahabad, learned AGA and perused the record.

2. The FIR in question was lodged as a missing person report. Subsequently, in the statement of the victim she did not support the prosecution story and stated that she was being harassed by her family and she went with the applicant on her own. The applicant has been falsely implicated in this case. The applicant is in custody since 08.04.2023.

3. Learned A.G.A. vehemently opposed the bail prayer.

4. Considering the said statement, the applicant who has no criminal history and is in jail since 08.04.2023 and there is nothing on record to demonstrate that the applicant if enlarged on bail, would in any way adversely affect the trial and without expressing any opinion on merit, I am of the view that the applicant is entitled to be released on bail.

5. Accordingly, the bail application is allowed.

6. Let the applicant- Manoj Saroj be released on bail in Case Crime/ FIR No. 113 of 2023, under Section 363, 366, 120B IPC and 16/17 POCSO Act, registered at Police Station- Nawabganj, District- Prayagraj, on his furnishing a personal bond with two sureties of Rs. 25,000/- each to the satisfaction of court concerned with the following conditions:

(a) The applicant shall execute a bond to undertake to attend the hearings;

(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence"

12. 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 23.05.2023. As such, he has undergone more than 4 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, 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, he submits 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.

13. Per contra, the learned A.G.A. and the learned counsel representing opposite party 2 have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

14. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the statement of the prosecutrix as noted above are inconsistent and contradictory, the prosecutrix has departed from the basic prosecution story as unfolded in the FIR in her subsequent statements referred to above, though FIR is not the encyclopedia of the basic prosecution case but it must be disclosed the basic prosecution case as held in the following judgments of Supreme Court in (i). Manoj and Others Vs. State of Maharashra, (1999) 4 SCC 268, (ii). Subhash Kumar Vs. State of Uttarakhand, (2009) 6 SCC 641 and (iii). Achhar Singh Vs. State of M.P. (2021) 5 SCC 543, admittedly, the FIR was lodged by the sister of the prosecutrix after the disclosure was made by the prosecutrix to the first informant, the prosecutrix has failed to explain the silence on her part in not disclosing the manner of occurrence as stated by her in her subsequent statement before the Doctor, who medically examined her and under Section 164 Cr.P.C., the clean antecedents of applicant, the period of incarceration undergone, 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, in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing opposite party 2 in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

15. Accordingly, the bail application is allowed.

16. Let the applicant-Sujeet Kumar Saroj, be released on bail in the 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.

17. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 9.10.2023

Vinay