Shantanu vs State Of U.P. And 3 Others
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Allahabad High Court

Shantanu vs State Of U.P. And 3 Others on 1 March, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:38324
 
Court No. - 83
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22404 of 2023
 

 
Applicant :- Shantanu
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Durga Prasad Singh,Kamlesh Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Durga Prasad Singh, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This repeat application for bail has been filed by applicant-Shantanu, seeking his enlargement on bail in Case Crime No. 203 of 2022, under Sections 376, 323, 504, 506, 313 I.P.C. and Section 5/6 of POCSO Act, Police Station- Geeda, District- Gorakhpur.

4. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant/opposite party-2 on 23.02.2024. However, inspite of service of notice no one has put in appearance on behalf of opposite party-2 to oppose this repeat application for bail.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 16.11.2022 passed in Criminal Misc. Bail Application No. 44060 of 2022 (Shantanu Vs. State of U.P. and 3 others). For ready reference, the same is reproduced hereinunder:-

"1. Heard Mr. Karunesh Pratap Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ashwani Kumar Pathak, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant - Shantanu seeking his enlargement on bail in Case Crime No.203 of 2022, under Sections 376, 323, 504, 506, 313 I.P.C. and Section 5/6 of The Protection of Children From Sexual Offenes Act, 2012, Police Station- Geeda, District- Gorakhpur, during the pendency of trial.

4. Record shows that first informant Smt. Durga .... (mother of the prosecutrix) lodged the F.I.R. dated 24.6.2022 alleging therein that named accused Shantanu had repeatedly dislodged the modesty of the minor daughter of the first informant.

5. After lodging of the afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime in terms of Chapter XII Cr.P.C. The statement of the first informant was recorded under Section 161 Cr.P.C. wherein she has supported the F.I.R. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. wherein the prosecutrix has not only supported the prosecution story as unfolded in the F.I.R., but has also detailed the manner of the occurrence and the time period of occurrence. Thereafter, the prosecutrix was medically examined. The prosecutrix in her statement before the doctor has reiterated her earlier statement under Section 161 Cr.P.C. The Doctor, who examined the prosecutrix did not find any injury on her body so as to denote sexual violence. However, with regard to the private part of the prosecutrix, the doctor has opined that :-

"Hymen - Old, torn and healed."

6. Certain samples were taken from the body of the proseutrix for pathological examination. However upon examination they showed negative results. As per medical opinion, the prosecutrix was stated to be aged about 17 years on the date of examination i.e. 30.6.2022. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has reiterated her earlier statement recorded under Section 161 Cr.P.C as well as her statement before the doctor. Various other witnesses were also examined by Investigating Officer, who have implicated the applicant in the crime in question. Investigating Officer on the basis of the above and other material collected by him during the course of investigation opined to submit the charge-sheet. Accordingly, he submitted the charge-sheet dated 4.8.2022 whereby applicant has been charge-sheeted under Sections 376, 323, 504, 506, 313 IPC and Section 5/6 POCSO Act.

7. Learned counsel for the applicant contends that applicant is named and a charge-sheeted accused but he is innocent. Referring to the material on record, the learned counsel for applicant submits that as per the F.I.R. version, the prosecutrix is aged about 20 years, as per the statement of the prosecutrix recorded under Section 161 Cr.P.C., she is aged about 25 years and as per the statement of the prosecutrix recorded under Section 164 Cr.P.C., she is aged about 22 years. However, as per the medical opinion, the age of the prosecutrix was stated to be 17 years. It is then submitted by the learned counsel for applicant that as per the statement of the prosecutrix recorded under Section 161 Cr.P.C. and before the doctor under Section 164 Cr.P.C., the prosecutrix appears to be a consenting party. Learned counsel for applicant further contends that the present criminal prosecution has been lodged against the applicant on the ground that applicant has extended false promise of marriage with the prosecutrix. Reference is made to the following judgments of the Apex Court :-

(i) Pramod Suryabhan Pawar vs. STate of Maharashtra; (2019) 9 SCC 608.

(ii) Sonu @ Shubhash Kumar vs. State of U.P.; 2021 SCC OnLine SC 181.

(iii) Maheshwar Tigga vs. State of Jharkhand; (2020) 10 SCC 108.

8. The medical evidence does not support the prosecution story as unfolded in the F.I.R. In the absence of medical evidence supporting the medical prosecution story, no conviction is possible under Sections 313, 376 IPC and 5/6 POCSO Act. Referring to the statement of the prosecutrix as recorded under Section 161/164 Cr.P.C, the learned counsel for applicant submits that when the statements of the prosecutrix are taken as a whole, the same do not fall in the category of impeccable evidence. By virtue of the inherent contradictions in the statements of the prosecutrix, they are not worthy of reliance and no inference can be drawn against applicant on the basis of same.

9. It is lastly submitted that 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 25.6.2022. As such, he has undergone four months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. Moreover, charge-sheet has already been submitted against the applicant, therefore, evidence sought to be relied upon by prosecution against applicant stands crystallized. As such custodial arrest of applicant is not absolutely necessary during the course of trial.

10. Per contra, the learned A.G.A. for State as well as Mr. Ashwani Kumar Pathak, the learned counsel for first informant have opposed the present bail application. They jointly submit that applicant is a named as well as a charge-sheeted accused. Applicant has been charge-sheeted under Sections 376, 313 IPC. The charge sheet is outcome of the investigation. As such, on the basis of material collected by the Investigating Officer, applicant has been charge-sheeted under aforesaid section. It is then contended by the learned A.G.A. that prosecutrix was aged about 17 years on the date of her examination. Taking into consideration, the statement of the prosecutrix and the modesty of prosecutrix were being dislodged three years prior to the date of lodging of the F.I.R. i.e. when the prosecutrix was aged about 14 years. There is nothing on record to show false implication of the applicant. Referring to the judgment of the Supreme Court in Phool Singh vs. State of Madhya Pradesh; (2022) 2 SCC 74, he submits that the prosecutrix in her oral statements has implicated mentioned the applicant in the crime in question. Neither there is any pleading nor there is any material on record on the basis of which false implication of the applicant may be inferred. They, therefore, submit that irrespective of the contradictions qua the age of the prosecutrix in her statement under Sections 161 and 164 Cr.P.C. version in the F.I.R. and the medical opinion, the basic prosecution story as unfolded in the statements of the prosecutrix remains unchanged. Taking into consideration, the provisions of POCSO Act, with reference to the facts as noted above, no indulgence be granted to the applicant by this Court.

11. Having heard the learned counsel for applicant, learned A.G.A. for State, the learned counsel representing first informant and upon consideration of evidence on record, accusations made as well as complicity of applicant and coupled with the fact that there is nothing on record to show false implication of applicant in the crime in question, the categorical statement of the prosecutrix that her modesty was being dislodged by the applicant for the last three years, the age of the prosecutrix when examined in the light of above and with reference to the medical opinion qua the age of the prosecutrix but without expressing any opinion on the merit of the case, this court does not find any good ground to enlarge the applicant on bail.

12. Accordingly, this application for bail fails and is liable to be rejected.

13. It is accordingly, rejected."

6. Learned counsel for applicant contends that subsequent to above order dated 16.11.2022 passed by this Court, the trial of applicant commenced before court below by way of Sessions Trial No.1578 of 2022 (State Vs. Shantanu) under Sections 376, 323, 504, 506, 313 I.P.C. and Section 5/6 of POCSO Act, Police Station- Geeda, District- Gorakhpur.

7. During course of trial, the prosecutrix appeared before court below as PW 1. However, the prosecutrix in her deposition before court below has not supported the F.I.R. Consequently, she was declared hostile. On the above premise, the learned counsel for applicant contends that since the statement of the prosecutrix has been recorded but she has not supported the F.I.R. therefore, in case the applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of trial. It is further submitted that since prosecutrix in her deposition before court below has herself not supported the F.I.R. therefore, no good ground exists to prolong the custodial arrest of applicant during the pendency of trial.

8. 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 25.06.2022. As such, he has undergone more than one year and eight 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, upto this stage, no such circumstance has emerged on record necessitating the custodial arrest of 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.

9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant a is named/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.

10. 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 has been recorded before court below, in view of above, in case, the applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of trial, the prosecutrix in her deposition before court below has not supported the F.I.R., once the prosecutrix has herself hot supported the F.I.R., therefore, no good ground exists to prolong the custodial arrest of applicant during the pendency of trial, the police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant, as such, 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, the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant-Shantanu 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.

13. 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 :- 1.3.2024

Imtiyaz