Allahabad High Court
Pappu Baheliya vs State Of U.P. on 20 July, 2021
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12396 of 2021 Applicant :- Pappu Baheliya Opposite Party :- State of U.P. Counsel for Applicant :- Sanjeev Mishra Gana Counsel for Opposite Party :- G.A. Hon'ble Ajit Singh,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
By means of this application, the applicant who is involved in Case Crime No. 244 of 2020, under Sections 376-D, 452 I.P.C., P.S. Jaitipur, District Shahjahanpur, seeking enlargement on bail during the trial.
Submissions made by the counsel for the applicant, that the present FIR was got registered by one Amit Kumar under aforementioned sections of Penal Code for the incident said to have taken place on 27.08.2020 at about 21.00 hours for which the FIR was got lodged on 01.09.2020 at 18.52 hours against (1) Pappu son of Ram Sahai (2) Pappu son of Premraj (present applicant) (3) Latoori son of Bhurilal and one unknown person. As per the text of FIR, all the named accused persons barged into the house of informant with illegal weapons and after threatening him, committed gang rape with his wife, Pinki Devi.
The 161 Cr.P.C. statement of the first informant and victim is annexed as Annexure No.2. Both of them have reiterated the allegations of gang rape. The wife in her 161 statement states that accused have given a kick over her stomach and stuffed her mouth by cotton and committed gang rape with her. On making resistance, they have slapped.
In 164 Cr.P.C. statement of the victim, which was recorded on 15.09.2020 (Annexure No. 5), the victim has tried to make improvement that after making sexual assault upon her, she got unconscious and when she gain conscious, she was in the hospital and she remain admitted in the hospital for a considerable period. She further alleged that the accused persons were pressurizing her husband to have truce after taking money. During investigation, the victim was sent for her medical examination on 01.08.2020 at 8.50 P.M., her hymen was found old-torn and there was no mark of injury over her person.
On these factual matrix of the case, it was argued by learned counsel for the applicant that there is an inordinate delay of 5 days in lodging the FIR by the informant, Amit Kumar, who is the husband of victim and an eye witness to the incident. There is no plausible justification coming forward for explaining this inordinate delay in lodging the FIR.
The learned counsel for the applicant further submits that the victim is a married lady and she was allegedly ravished by 3 known persons and one unknown, all of them mercilessly committed rape upon her and quenched their animal desire upon her but surprisingly, neither the external body nor internal part of body, shows any sexual violence upon her. Being a married woman, it is quite natural that her hymen was old torn, the supplementary medico-legal report clearly indicates that neither there is sign of any sexual assault in her vagina nor any spermatozoa was seen.
The learned counsel for the applicant has further pointed out her shifting stand in her 161 and 164 Cr.P.C. statements. There is a marked embellishments and improvements in her 164 Cr.P.C. statements that she remain unconscious for 5 good days.
The learned counsel for the applicant submits that the fact remains that informant's father Manoj sold out his house to Pappu Bahelia(applicant) for a sale consideration of Rs. 60,000/- about 10 years back. Later on, Amit Kumar and his wife tried to enter into the house and a panchayat was convened in which Pappu Bahelia (applicant) on a compassionate ground has given back side courtyard to the people for living purpose. After occupying the same, both, the husband and wife started pressurizing the applicant to handover the entire house to them else they would trap him in a false rape case. Rest of the accused persons are close aides of applicant, who were also named in this offence. It was lastly submitted that the applicant is in jail since 19.09.2020 and that the similarly situated co-accused namely Pappu has already been granted bail by co-ordinate Bench of this Court vide order dated 08.06.2021 passed in Criminal Misc. Bail Application No. 9405 of 2021, copy of which order has been produced before this Court and is taken on record.
Learned. A.G.A. has vehemently opposed the prayer for bail by mentioning that the statements U/s 161 and 164 Cr.P.C. of the victim are substantially on same pattern with slight improvements and taking into the account the gravity of offence i.e. gang rape, the applicant deserves no sympathy and the bail application of the applicant should be rejected, though learned A.G.A. fairly contended that the applicant has got no criminal antecedent to his credit.
After hearing the rival submissions, the Court is pitted against few mind boggling questions which were remain unanswered by learned A.G.A. i.e. when the entire offence committed right in front of Amit Kumar/the Informant/an Eye witness, what would be justifiable reason for lodging the FIR after lapse of 5 days. Secondly, 3 known and one unknown able bodied assailants ravished her mercilessly but the victim has not received single scratch over her external or internal part of body, prima facie denying the allegations of sexual assault upon her.
Doctor too has ruled out any forcible penetration in her vagina and lastly in 164 Cr.P.C. statement, she states that after the offence, she got unconscious for 5 good days without any medical assistance. But on 01.09.2020 she is narrating incident to the doctor, clearly indicates that at that time, she was well oriented. Not only this, Amit Kumar, husband of victim wants to grab the property belonging to the applicant and rest of the accused persons are his closed friends were also falsely roped in this offence.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of the punishment, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be enlarged on bail during the pendency of the trial.
Let the applicant, Pappu Baheliya be released on bail in the aforesaid case on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:-
1. The applicant will continue to attend and co-operate in the trial pending before the court concerned on the date fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge in any illegal activities during the bail period.
It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.
In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by learned counsel for the applicant along with a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 20.7.2021 S.Ali