Allahabad High Court
Vivek vs State Of U.P. on 11 November, 2024
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:176250
Court No. - 84
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28270 of 2023
Applicant :- Vivek
Opposite Party :- State of U.P.
Counsel for Applicant :- Abhilasha Singh,Ashutosh Yadav,Geetam Singh,Shyam Lal
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1-Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record.
2-By means of this second bail application under Section 439 of Cr.P.C., applicant-Vivek, who is involved in Case Crime No. 215 of 2022, under Sections 376D, 394, 323, 506 I.P.C. and Section 66-E of I.T. Act, Police Station Kasganj, District Kasganj seeks enlargement on bail during the pendency of trial.
3-First bail application of the applicant was rejected by this Court vide order dated 17.03.2023 in Criminal Misc. Bail Application No. 46268 of 2022.
4-Succinctly, prosecution case is that the victim who is a married lady got a first information report lodged on 16.04.2022 through an application under Section 156(3) Cr.P.C. dated 25.10.2021 against Pushpendra, Akash, Amit, Rinku and Vivek (present applicant) alleging inter-alia that on 26.09.2021, when the victim and Rinku were going for shopping, aforementioned accused persons who were already ambushed there, stopped them and started questioning and assaulting Rinku. One of them untied the belt of Rinku's pant. During the scuffle, the 'pallu' of her saree fell off. Then they also made her obscene video. F.I.R. further alleges that all the accused persons forcibly took her away and committed rape on her. They also looted an amount of Rs. 12,240/- from her and threatened her not to file a complaint against them.
5-The main substratum of argument of learned counsel for the applicant is that there are contradictions in the statements of victim recorded during the investigation and before the trial Court. Much emphasis has been given by contending that victim has become hostile and co-accused Rinku, Pushpendra and Amit have been granted bail by the co-ordinate Bench of this Court vide orders dated 03.12.2022, 07.04.2023 and 13.04.2023 in Criminal Misc. Bail Application Nos. 39460 of 2022, 43980 of 2022 and 49650 of 2022 respectively, therefore, applicant who is languishing in jail since 19.07.2022 is entitled to be released on bail.
6-On the other hand, learned A.G.A. vehemently opposed the submissions of learned counsel for the applicant by contending that it is a case of gang rape. The first bail application of the applicant was rejected on 17.03.2023 on merit even after granting bail to co accused Rinku on 03.12.2022 and thereafter, other co-accused persons, as noted above, have obtained bail without disclosing the order dated 17.03.2023 in their respective bail applications. So far as the contradiction in the statement of victim is concerned, learned A.G.A., placing reliance upon the judgment of the Apex Court in the case of Rajesh Yadav vs. State of U.P., 2022 (12) SCC 200, submits that the examination-in-chief and cross-examination of the victim was not recorded on the same day, therefore, the benefit of minor contradictions in the statement of the victim cannot be given to the accused at this stage. It is also contended that the victim, in her examination in chief, has made allegation of rape against the present applicant Vivek also, therefore, considering the manner of crime and gravity of offence as well as the statement of victim, applicant is not entitled to be released on bail.
7-Having heard the submissions of learned counsel for the parties and perusing the record, I find that so far as the case of present applicant Vivek is concerned, victim in her statement recorded under Section 161 Cr.P.C.,164 Cr.P.C. during investigation as well as statement given before the doctor during her medical examination and in her examination-in-chief recorded before the trial court as PW-1 has made allegation of rape against him. There is no inconsistency in the statement of the victim with regard to role of present applicant Vivek is concerned. From perusal of examination-in-chief of the victim recorded before the trial court, I find that she has stated inter-alia that all the accused persons of this case has committed rape on her one by one. I also find that the examination-in-chief of the victim was recorded on 15.04.2024, whereas her cross-examination was not done in continuation of the her examination-in-chief but the same was done after 3-1/2 months on 01.08.2024, in which she has given some contradictory statement, therefore, possibility of winning over the victim cannot be ruled out. It is well settled that a conclusion from the statement of a witness is to be drawn by considering his/her statement as a whole not in isolation. Since the allegation of prosecution and defence of the accused is still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously so that the trial of the applicant may not be affected. The issue regarding the evidentiary value of examination-in-chief of such witnesses, who had turned hostile in their cross-examination, has been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that "merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief.
8- This Court is of the view that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect.
9-Considering the gravity of offence, severity of punishment, role assigned to the applicant and statement (examination-in-chief and cross examination) of the victim recorded before the trial court, I am not inclined to grant bail to the applicant.
10-Accordingly, the bail application is rejected.
11-It is made clear that any observation made in this order is for the purpose of disposal of bail application and shall not affect the merit of the trial.
12-However considering the detention period of the applicant as noted above, Superintendent of Police, Kasganj is directed to ensure the production of all the remaining prosecution witnesses on the dates fixed before the trial court so that the trial of the applicant may be concluded at earliest.
13- On appearance of the prosecution witnesses, their statement shall be recorded on the same day without granting any adjournment to either of the parties.
14-Copy of this order be communicated to Superintendent of Police, Kasganj as well as concerned trial court immediately for necessary information and compliance.
Order Date :- 11.11.2024
Saurabh
