Rakesh Rathaur vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 26568 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:62685 
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 2348 of 2022
 

 
Appellant :- Rakesh Rathaur
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And Another
 
Counsel for Appellant :- Santosh Kumar Kanaujia,Arun Singh Somvanshi,Prabhat Kumar
 
Counsel for Respondent :- G.A.,Shailesh Kumar Singh
 

 
Hon'ble Shamim Ahmed,J.

Rejoinder affidavit has been filed, which is taken on record.

Heard Sri Arun Singh, learned counsel for the appellant, Sri Aditya Singh, Advocate, holding brief of Sri Shailesh Kumar Singh, learned counsel for the opposite party no.2 as well as Ms. Shikha Sinha, learned A.G.A. for the State and perused the entire record.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 05.09.2022 passed by learned Special Judge, S.C./S.T. (P.A.) Act/IInd. Addl. Sessions Judge, Lakhimpur Kheri, in Bail Application No. 264 of 2022, Case Crime No.260 of 2022, under Sections 376, 354Kha, 452, 504, 506, I.P.C. and Section 3(1)W, 3(2)(v) of S.C./S.T. Act, Police Station Neemgavon, District Lakhimpur Kheri, whereby the bail application of the appellant has been rejected.

Learned counsel for the appellant submits that the appellant is innocent and he has been falsely implicated in the present case due to enmity and village rivalry. The first information report was lodged by the prosecutrix/victim herself, who is aged about 31 years and is mother of two children, on false and fabricated facts and grounds. In fact, no such incident had taken place, as is alleged by the prosecutrix in the first information report. Initially the first information report was lodged under Sections 354, 452, 506, 504, I.P.C. Thereafter, statement of the prosecutrix was recorded under Section 161 Cr.P.C., in which she has almost repeated the same version of the first information report, and no allegation of rape was levelled in that statement, but suddenly, when her statementunder Section 164, Cr.P.C. was recorded after some time, she has totally taken a somersault on the pressure created by the family members and the Police, and she has made an allegation of rape against the appellant, thus, the entire prosecution story as established in the first information report and in her statement recorded under section 161, Cr.P.C. also falsify the allegation of rape, that is leveled only in her statement recorded under Section 164, Cr.P.C. The allegation of rape is totally false and fabricated and it has been levevelled subsequently only with the intention to defame the image of the appellant as also to defame the image of his entire family in the society. It was further submitted by the learned counsel for the appellant that the allegation of rape, that is leveled by the prosecutrix in her statement recorded under Section 164 Cr.P.C., got demolished after perusal of her medical report, wherein the Doctor has stated that there are no sign of use of force. Sexual violence cannot be ruled out. Final opinion can be exposed after availability of F.S.L. report, which is not available till date.

This fact has also been confirmed by the learned A.G.A. Further, there was no external or internal injury found on the person of the prosecutrix. Hymen was found raptured, old torn. Thus, the allegation of rape is not supported by any medical evidence.

Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 08.08.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Sri Aditya Singh Tomar, Advocate as well as Miss. Shikha Singh, learned A.G.A. for the State opposed the prayer for bail, and submitted that the apellan, as per statement of the prosecutrix recorded under section 164, Cr.P.C., thus, the appeal be rejected, as the appellant is not entitled to any relief.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there are various contradictions in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C as in her statement recorded under Section 161 Cr.P.C., she has not uttered a word regarding rape, whereas in her statement recorded under Section 164 Cr.P.C., she has levelled the allegation of rape against the appellant; allegation of rape got demolished after perusal of medical report of the prosecutrix, wherein doctor has clearly stated that no definite opinion regarding sexual assault can be given, hymen was found torn and healed; the age of the prosecutrix was 31 years at the time of incident, as such, she is major and know the consequences very well and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 05.09.2022 passed by learned Special Judge, S.C./S.T. (P.A.) Act/II Addl. Sessions Judge, Lakhimpur Kheri, in Bail Application No. 264 of 2022, Case Crime No. 260 of 2022, under Sections 376, 354Kha, 452, 504, 506, I.P.C. and Section 3(1)W, 3(2)(v) of S.C./S.T. Act, Police Station Neemgavon, District Lakhimpur Kheri, is hereby set aside and reversed.

Let the appellant, Rakesh Rathaur be released on bail in the Case Crime No.260 of 2022, under Sections 376, 354Kha, 452, 504, 506, I.P.C. and Section 3(1)W, 3(2)(v) of S.C./S.T. Act, Police Station Neemgavon, District Lakhimpur Kheri, with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

(Shamim Ahmed, J.)

Order Date :- 27.9.2023

A.Nigam