Allahabad High Court
Gabbar vs State Of U.P. And 3 Others on 27 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:151942 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28561 of 2023 Applicant :- Gabbar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ganga Bhushan Mishra Counsel for Opposite Party :- G.A.,Santosh Kumar Connected With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27553 of 2023 Applicant :- Naresh Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Preeti Dwivedi Counsel for Opposite Party :- G.A.,Ashok Kumar Singh,Pratibha Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. Ganga Bhushan Mishra, the learned counsel for applicant-Gabbar, Miss Preeti Dwivedi, the learned counsel for applicant-Naresh, the learned A.G.A. for State and Mr. Ashok Kumar, Singh, the learned counsel representing first informant-opposite party 4.
2. Perused the record.
3. These applications for bail have been filed by applicants Gabbar and Naresh, seeking their enlargement on bail in Case Crime No. 41 of 2023, under Sections 147, 452, 354, 354-B, 376-D, 323 IPC and Sections 7/8 POCSO Act, Police Station-Dholna, District-Kasganj during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 06.02.2023, a delayed FIR dated 10.02.2023 was lodged by first informant-Pintu and was registered as Case Crime No. 41 of 2023, under Sections 147, 354, 354-B, 452, 323 IPC, Police Station-Dholna, District-Kasganj. In the aforesaid FIR, 6 persons namely- (1) Amit, (2) Arjun, (3) Naresh, (4) Vimal, (5) Gabbar and (6) Monu have been nominated as named accused.
5. The gravamen of the allegations made in the FIR to the effect that named accused entered the house of the prosecutrix and thereafter, dislodged the modesty of both the prosecutrix by forcibly and deliberately committing rape upon them.
6. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter-XII Cr.P.C. He recorded the statement of the prosecutrix namely X-Minor under Section 161 Cr.P.C., which is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has supported the FIR but has stated that named accused assaulted both the victims and the brother of the minor proseuctrix on account of which, he sustained injuries. A vague statement has also been made that something wrong was done with both the prosecutrix. Thereafter, the prosecutrix-minor was requested for her medical examination. The minor prosecutrix in her statement before the Doctor has departed from her earlier statement recorded under Section 161 Cr.P.C. She has now stated that the modesty of her Bhabhi i.e. prosecutrix major was being dislodged whereas the prosecutrix minor was assaulted. The brother of the prosecutrix minor on the shout raised by the prosecutrix minor came to rescue them but he was also assaulted.
7. The Doctor who examined the prosecutrix minor did not find any external injury on her body so as to denote commission of sexual assault. With regard to the private part of the prosecutrix minor, the Doctor has opined as follows:-
"Hymen - old, torned, healed up"
8. Ultimately, the statement of the prosecutrix minor was recorded under Section 164 Cr.P.C. wherein she has departed from her earlier statement recorded under Section 161 Cr.P.C. and before the Doctor. She has now stated that not only the modesty of the prosecutrix major but also the modesy of the prosecutrix minor were dislodged by the named accused.
9. With regard to the prosecutrix major, her statement was recorded under Section 161 Cr.P.C. and the same is on record at page 39 of the paper book. The prosecutrix major in her aforesaid statement has stated that clothes of both the prosecutrix were torned by the named accused and thereafter, something wrong was done by them. The Jeth of the prosecutrix major came to save them on the shout raised by them but he was also assaulted. Thereafter, the prosecutrix major was medically examined. The prosecutrix major in her statement before the Doctor has departed from her earlier statement qua the manner of occurrence. However, the Doctor who examined the prosecutri major did not find any injury on her body so as to denote the commission of sexual assault. With regard to the private part of the prosecutrix major, the Doctor has opined as follows;
"Hymen perineum - old, torned, healed up"
10. Thereafter, the statement of the prosecutrix major was recorded under Section 164 Cr.P.C., which is on record at page 80 of the paper book. The prosecutrix major in her aforesaid statement has again departed from her earlier statement recorded under Section 161 Cr.P.C. as well as the statement before the Doctor. She has now stated that the prosecutrix minor was molested whereas something wrong was done with her. During the course of investigating, Investigating Officer recovered the scholar register/transfer certificateof the prosecutrix minor wherein her date of birth is recorded as 10.05.2010. The occurrence giving rise to these criminal proceedings occurred on 06.02.2023. As such, the prosecutrix minor was aged about 13 years and few months on the date of occurrence. Investigating Officer also examined other witnesses under Section 161 Cr.P.C. including the injured Teetu, whose statement under Section 161 Cr.P.C. is on record at page 88 of the paper book. However, this witness in his statement has not stated that the modesty of the prosecutrix minor or prosecutrix major was dislodged by forcibly committing rape upon them.
11. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He, however, charge sheeted named accused Gabbar and Naresh under Section 376-D and Sections 7/8 POCSO Act whereas the rest of the named accused have been charge sheeted under Sections 147, 452, 354, 354-B, 323 IPC.
12. Learned counsel for applicants contends that though applicants are named and charge sheeted accused yet they are liable to be enlarged on bail. They have invited the attention of Court to the statements of both the prosecutrix referred to above and on basis thereof, they contend that when the statements of the prosecutrix noted above, are taken as a whole, the same are inconsistent and contradictory. Both the prosecurtrix have not been clear, consistent and categorical in their statements referred to above. The medical evidence does not support the allegation of rape upon both the prosecutrix. Referring to the judgment of the Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74, the learned counsel for applicants submit 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, when the aforesaid principle is applied in the present case, it is apparently clear that when the statements of both the prosecutrix are taken as a whole, the same are not clear, categorical and consistent. The exaggeration, embellishment and contradiction that has emerged in the subsequent statements of both the prosecutrix remains unexplained up to this stage. As such, when the statements of both the prosecutrix are considered as a whole, they cannot be classified as impeccable piece of evidence. Furthermore the medical evidence does not support the charge under Section 376-D IPC and Sections 7/8 POCSO Act.
13. Learned counsel for applicants further contend that the applicants and the accused are neighbours and a neighbourhood dispute has been dragged into filthy criminal litigation. Even otherwise, applicants are men of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 23.04.2023. As such, they have undergone more than 3 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted and therefore, the entire evidence sought to be relied upon by the prosecution against applicants stand crystallized. However, up to this stage, no such incriminating circumstance has emerged on the basis of which, it cannot be said that custodial arrest of applicants is absolutely necessary during the pendency of trial. They, therefore, contend that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
14. Per contra, the learned A.G.A. and Mr. Ashok Kumar, Singh, the learned counsel representing first informant-opposite party 4 have vehementaly opposed the prayer for bail. They submit that since applicants are named as well as charge sheeted accused, therefore, they do not deserve any indulgence by this Court. The occurrence has taken place inside the house of the prosecutrix. In the incident giviing rise to present criminal proceedings, the brother of the proseuctrix minor has sustained injury as is clearly evident from his medico legal report, which is on record at page 41 of the paper book. As such, the incident cannot be doubted. However, they could not dislodge the factual/legal submissions urged by the learned counsel for applicants with reference to the record at this stage.
15. Having heard, the learned counsel for applicant, the learned A.G.A. for State,the learned counsel representing first informant-opposite party 4, upon perusal of record, evidence, accusations made, nature and gravity of offence and complicity of accused coupled with the fact that both the prosecutrix have not been consistent, clear and categorical in their statements recorded under Section 161 Cr.P.C., before the Doctor and under Section 164 Cr.P.C., as such, the statements of both the prosecutrix suffers from the voice of embellishment, contradiction and exaggeration which remains unexplained up to this stage, as such, no prosecution of applicants can be maintained on the basis of same, the judgment of the Supreme Court in Phool Singh (Supra), the medical evidence does not support the charge under Section 376-D IPC and Sections 7/8 POCSO Act, as per the medical evidence, none of the prosecutrix have sustained any external injury on their body, the charge sheeted has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, however, the learned A.G.A. could not point out from the record that any such incriminating circumstance has emerged necessitating the custodial arrest of applicants 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 applicants, the period of incarceration undergone but without making any comments on the merits of the case, applicants have made out a case for bail.
16. Accordingly, the bail applications are allowed.
17. Let the applicants-Gabbar and Naresh, be released on bail in the aforesaid case crime number on their 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 APPLICANTS 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 APPLICANTS 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 APPLICANTS 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 APPLICANTS 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 APPLICANTS.
18. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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 :- 27.7.2023 Vinay