Ramsingh vs State Of U.P. And Another
2023 Latest Caselaw 27584 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:194093
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40037 of 2023
 

 
Applicant :- Ramsingh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vinay Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Vinay Kumar Mishra, 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-Ramsingh, seeking his enlargement on bail in Case Crime No. 91 of 2023, under Sections 376, 452, 506 IPC, Police Station-Ayana, District-Auraiya during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 14.07.2023, a delayed FIR dated 21.07.2023 was lodged by the prosecutrix-Ruchi and was registered as Case Crime No. 91 of 2023, under Sections 376, 452 IPC and Sections 3/4 POCSO Act, Police Station-Ayana, District-Auraiya. In the aforesaid FIR, applicant-Ramsingh has been nominated as solitary named accused.

5. The gravamen of the allegations made in the FIR to the effect that named accused-Ramsingh i.e. applicant herein on 14.07.2023 entered into the house of the prosecutrix and thereafter, dislodged the modesty of 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., which is on record at page 20 of the paper book. The prosecutrix in her aforesaid statement has rejoind the allegations made in the FIR. Thereafter, the prosecutrix was requested for her internal medical examination. However, the prosecutrix refused to give her consent for her internal medical examination. As per the medical opinion, the prosecutrix was said to be aged about 19 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., same is on record at page 42 of the paper book. The prosecutrix in her aforesaid statement has departed from the prosecution story as unfolded in the FIR. The prosecutrix has now narrated a totally new story, which is alien to the basic prosecution case as unfolded in the FIR. As per the aforesaid statement of the prosecutrix, her modesty is alleged to have been dislodged by the applicant for the last 2 years.

7. During course of investigation, Investigating Officer examined first informant i.e. the prosecutrix and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated 29.07.2023 whereby applicant has been charge sheeted under Sections 376, 452, 506 IPC.

8. 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. The prosecutrix is major. Referring to the judgment of the Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74, he submits that prosecution of an accused 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, categorical and consistent. When the aforesaid test is apprised to the statement of the prosecutrix as noted above as the same are considered as a whole, it is apparent that there is not only contradiction but also exaggeration and embellishment in the subsequent statement of the prosecutrix recorded under Section 164 Cr.P.C. The vice so appearing in the subsequent statement of the prosecutrix remains unexplained up to this stage. He, therefore, submits that since the statement of the prosecutrix as noted above do not fall in the category of impeccable evidence, therefore, no prosecution of the applicant can be maintained on the basis of the same.

9. Even otherwise, as per the statement of the prosecutrix recorded under Section 164 Cr.P.C., there is gross delay in lodging the FIR. However, neither in the FIR nor in the statement of the prosecutric referred to above, there is any explanation with regard to the delay in lodging the FIR. Since the delay in lodging the FIR remains unexplained, the prosecution of the applicant cannot be maintained. To buttress his submission, he has relied upon the judgment of Supreme Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8) and Mandar Deepak Pawar Vs. State of Maharashtra and Another, 2022 Live Law (SC) 649.

10. 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 27.07.2023. As such, he has undergone more than 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 incriminating 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.

11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. 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 statements of the prosecutrix as recorded under Sections 161/164 Cr.P.C. are not clear, categorical and consistent, to the contrary, the same are contradictory, full of exaggeration and embellishment, the contradiction, exaggeration and the embellishment occurring in the subsequent statement of the prosecutrix under Section 164 Cr.P.C. remains unexplained up to this stage, the judgment of the Supreme Court in Phool Singh (Supra), as per the statement of the prosecutrix recorded under Section 164 Cr.P.C., there is gross delay in lodging the FIR which remains unexplained, as such, the prosecution of the applicant itself cannot be maintained vide judgment of the Supreme Court in P. Rajagopal (Supra) and Mandar Deepak Pawar (Supra), the medical evidence does not support the ocular version of the occurrence inasmuch as, the prosecutrix has refused for her internal medical examination, 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, yet 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. 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.

13. Accordingly, the bail application is allowed.

14. Let the applicant-Ramsingh, 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.

15. 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