Allahabad High Court
Shashi Singh vs Central Bureau Of Investigation on 16 July, 2019
Author: Anant Kumar
Bench: Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- BAIL No. - 10759 of 2018 Applicant :- Shashi Singh Opposite Party :- Central Bureau Of Investigation Counsel for Applicant :- Sunil Kumar Singh Counsel for Opposite Party :- Bireshwar Nath, Naved M. Ali Hon'ble Anant Kumar,J.
Heard learned counsel for the applicant, learned counsel for C.B.I. and perused the record.
The present bail application has been filed by the applicant in Crl. Case No. 1228 of 2018, RC No. 0062018S0008, under Sections 120B read with 363/366/376 (i)/506 IPC and Section 3/4 POCSO Act, Police Station ACB CBI, Lucknow.
As per version of the F.I.R. which was lodged on 12.04.2018 by the complainant Asha Singh who is the mother of prosecutrix to the effect that her minor daughter whose date of birth is 17th August, 2002 studied in A.B.C. Public School, Soudapur Chivlaha, District Raebareli. On 04.06.2017 at 8.00 P.M. present applicant persuaded the prosecutrix and took her to the house of M.L.A. Kuldeep Singh and the M.L.A. Kuldeep Singh raped the prosecutrix. When the daughter of the complainant raised objection, she was given threat that if any information is given to anyone entire family will be eliminated. It is further alleged that present applicant was also accomplice in the said crime as she had taken the prosecutrix to the house of said M.L.A. where she was raped, present applicant was present in the courtyard. When prosecutrix came back to her house, she narrated entire story to her family members. It is alleged that inspite of the best efforts of the complainant first information report could not be registered. A request was made that her F.I.R. may be lodged and action may be taken.
Mr. Gopal Chaturvedi, Senior Advocate learned Amicus Curiae moved an application before the Division of Allahabad High Court headed by Hon'ble the Chief Justice and a request was made that since the matter pertains to a sitting M.L.A. of Uttar Pradesh therefore the matter should be handed over to Central Bureau of Investigation(C.B.I.) for investigation. After hearing at length and after considering the entire material on record, the Court of Hon'ble Chief Justice in Criminal Writ- PIL No. 1 of 2018, passed a detailed order and handed over the investigation of the case to C.B.I. That is how the C.B.I. came into picture.
During the investigation, statement of prosecutrix was recorded under Section 164 Cr.P.C. by the Special Judicial Magistrate, C.B.I., Lucknow. The prosecutrix in her statement recorded under Section 164 Cr.P.C. has supported the prosecution version and stated that on 04.06.2017, at about 8.00 P.M. her neighbour who happens to be her sister-in-law (Bhabhi) in relation had taken her to the house of M.L.A. Kuldeep Singh Sengar on the pretext of arranging a job to the prosecutrix. The prosecutrix left her house without informing the family members and went to the house of M.L.A. She was taken inside the house. In the meantime, said M.L.A. Kuldeep Singh came in the courtyard. Thereafter, M.L.A. taken her in a room where she was threatened that if she would raise alarm she would be killed. Thereafter, the M.L.A. disrobed her and for half an hour she was raped by the M.L.A. Kuldeep Singh. Thereafter she put on her clothes and when she came out of the room present applicant was standing in the courtyard. Thereafter, prosecutrix came back to her house but at that time she did not disclose anything to her mother out of fear.
Another incident is also narrated by the prosecutrix in her statement under Section 164 Cr.P.C. which is dated 11.06.2017. She has stated that on 11.06.2017 at about 9.10 P.M., she had gone to fetch water outside the house where 4-5 persons were there in a four wheeler vehicle and she knows names of only two persons. One was Naresh Tiwari and other was Shubham Singh who is the son of present applicant. All of them forcibly took her to Kanpur where she was kept in a room and she was raped one by one. There she was kept for 8 days and during this period she was raped 5-6 days and on 20.06.2017 she was recovered by the police from Auraiya. It is further stated that after her recovery from Auraiya, for 10 days she was kept in Mahila Thana and thereafter she was made to take bath and then she was sent for medical examination where her statement was recorded but she did not narrate before the police about the earlier occurrence of 04.06.2017 because police had threatened her that she should not name Kuldeep Singh Sengar because he is an M.L.A. On 30.06.2017 she was handed over to her family members. There also she did not disclose about the occurrence. Thereafter, she was taken to Delhi where she remained for 4-5 days. Then she disclosed entire incident to her aunt Pushpa.
Later on, on 17.08.2017 she came to meet to the Chief Minister where she narrated entire incident, then the Chief Minister assured her for making an inquiry in the entire matter. However, for 10 days no action was taken.
On 03.04.2018 brother of M.L.A. Kuldeep Singh Sengar, namely, Atul Singh Sengar, Bauva, Shailu, Vineet, Sonu, Vinod came to the Village and her father was badly beaten by these persons. He was dragged to the house of Kuldeep Singh Sengar and tied with a Neem Tree and there also he was badly beaten in the presence of police. Thereafter, her father was roped in a false case and he was taken to police station and was put in lock-up. Apart, from this story, some facts have also been narrated, but these facts are not related with the present case.
Learned counsel for the applicant has stated that a false case has been cooked up against the applicant out of vengeance and enmity. Occurrence in this case is shown to have taken place on 04.06.2017 whereas F.I.R. in this case has been lodged on 12.04.2018 after a long delay and this delay has not been explained. It is further submitted that when investigation was done by the C.B.I. in the matter, the victim was subject to undergo medical examination by C.B.I. and during the course of investigation first she was sent for medical examination to District Hospital, Unnao where her age was found between 18 years and half year. During the course of investigation she was got medically examined on 14.04.2018 by a panel of doctors at Ram Manohar Lohiya Hospital, Lucknow and as per opinion of the doctors, her age was 18 years. This report of Doctors was sent to All India Institute of Medical Sciences, New Delhi and after examination of the report her age was found to be 18 years.
On the basis of these facts & circumstances, it is stated by learned counsel for the applicant that in this case provisions of POCSO Act are not applicable as the age of the prosecutrix is above 18 years. It has also been submitted that in the medical report, proof of rape is not there. Learned counsel for the applicant further submitted that infact uncle of the prosecutrix, namely, Mahesh Singh is the author of entire episode because he was inimical to the family of the M.L.A. Kuldeep Singh Sengar. Said Mahesh Singh is also a notorious criminal and has been convicted in so many other cases. It is also submitted that occurrence in this case is said to have taken place on 04.06.2017. However, before lodging F.I.R. in the present case another occurrence had taken place with the prosecutrix on 11.06.2017 as detailed by the prosecutrix in her statement under Section 164 Cr.P.C. The F.I.R. of the said incident was registered at Police Station Makhi, District Unnao on 20.06.2017 at Crime No.316. But it is very strange that while lodging the F.I.R. of the present case no whisper of the events was shown in the present F.I.R. because when the present F.I.R. was lodged the occurrence of 11.06.2017 had already taken place which gives an indication that prosecutrix is not coming forth with the full facts of the case.
It is also argued by learned counsel for the applicant that CDR of the main accused Kuldeep Singh Sengar collected by the Investigation Agency reveals that on 04.06.2017 in the night at 8.00 P.M. on the aforesaid date and time of occurrence said M.L.A. Kuldeep Singh Sengar was away from his house for about 50 Kms. This shows that at the time of occurrence co-accused was not at his residence, so there is no question of rape. It is also stated that in the F.I.R. occurrence is shown to have taken place on 04.06.2017 at 8.00 P.M. whereas at the other place the prosecutrix has come forward with the case that occurrence had taken place on 04.06.2017 at 2.00 P.M. This discrepancy also shows that the story of prosecution is not correct.
Opposing the bail, learned counsel for C.B.I. has stated that in this case presumption of guilt so far the present applicant is concerned is to be taken within the provisions of Section 29 of the Protection of Children From Sexual Offences Act, 2012 which states as under :-
"29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attempting to commit any offence under section 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
The next argument of learned counsel for the C.B.I. is that in this case trial is yet to begin and so far as the determination of age of the prosecutrix is concerned, it is for the trial court to determine on the basis of evidence, oral and documentary. It is also stated that during the course of investigation statement of mother of the prosecutrix was also recorded wherein she has stated that she was minor at the time of incident. It is also stated that whatever may be the discrepancy, the prosecutrix in her statement recorded under Section 164 Cr.P.C. has supported the prosecution version and has stated that she was raped by M.L.A. Kuldeep Singh Sengar and the present applicant was instrumental in getting the prosecutrix raped as she took the prosecutrix to the house of M.L.A. Kuldeep Singh Sengar and all through she was present in the courtyard of the house of the M.L.A. So far as the application of Section 29 of the Protection of Children From Sexual Offences Act in the present case is concerned, to my view said presumption is to be left to be decided by the trial court and at the stage of bail, it will not be appropriate to give any finding on that point.
So far as the statement of prosecutrix recorded under Section 164 Cr.P.C. is concerned, at this stage, I do not find any reason to disbelieve the said statement of the prosecutrix recorded under Section 164 Cr.P.C. Learned counsel for the applicant has failed to show as to how and why the applicant has been falsely implicated in the case.
Considering the entire facts and circumstances of the case, I do not find it to be a fit case for granting bail. Accordingly, the bail application is rejected.
Order Date :- 16.7.2019 ML/-