Allahabad High Court
Dinesh Sahani vs State Of U.P. on 6 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44044 of 2021 Applicant :- Dinesh Sahani Opposite Party :- State of U.P. Counsel for Applicant :- Ajeet Kumar Singh Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47089 of 2021 Applicant :- Deepak Kumar Sahani Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjay Kumar,Shashi Kant Shukla Counsel for Opposite Party :- G.A. And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6420 of 2022 Applicant :- Dheeraj Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shubham Srivastava,Prateek Kumar Srivastava,Raja Kesarwani Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Ajeet Kumar Singh along with Mr. Shashi Kant Shukla and Mr. Pawan Giri, Advocate, holding brief of Mr. Prateek Kumar Srivastava, learned counsel for applicants and learned A.G.A. for State.
These applications for bail have been filed by applicants- Dinesh Sahani, Deepak Kumar Sahani and Dheeraj seeking their enlargement on bail in Case Crime No. 180 of 2021, under Sections 376D, 506, 120B IPC and Section 5(g)6 POCSO Act and Section 67(A) I.T Act, P.S. Sikandarpur District Ballia, during the pendency of trial.
Perused the record.
Criminal Misc. Bail Application No. 44044 of 2021 (Dinesh Sahani Vs. State of U.P.) came up for orders on 21.1.2022 and this Court passed the following order:-
"Case called out in revise list.
Leaned counsel for applicant is not connected virtually. Learned A.G.A. is connected virtually.
Learned A.G.A. points out that following bail applications filed by co-accused are also pending before this Court:
(i) Criminal Misc. Bail Application No. 44265 of 2021 (Ritesh Sahani Vs. State of U.P.)
(ii) Criminal Misc. Bail Application No. 47089 of 2021 (Deepak Kumar Sahani Vs. State of U.P.) In view of above connect above mentioned applications along with this application for bail.
Matter shall reappear as fresh on 7.2.2022 along with connected matters. "
Pursuant to above order, Criminal Misc. Bail Application No. 44265 of 2021 (Ritesh Sahani Vs. State of U.P.) and Criminal Misc. Bail Application No. 47089 of 2021 (Deepak Kumar Sahani Vs. State of U.P.) have been connected along with bail application No. 44044 of 2021(Dinesh Sahani Vs. State of U.P.). As such, aforementioned bail applications have been listed together. Since aforementioned bail applications arise out of same case crime number, they have been heard together and are now being disposed of finally by a common order.
Record shows that in respect of an incident, which is alleged to have occurred on 16.6.2021, a delayed F.I.R. dated 22.8.2021 was lodged by first informant Rekha and was registered as Case Crime No. 180 of 2021, under Sections 376D, 506, 120B IPC and Section 5(g)6 POCSO Act and Section 67(A) I.T Act, P.S. Sikandarpur District Ballia. In the aforesaid F.I.R., six persons namely Deepak Sahani, Ritesh Sahani, Dinesh Sahani, Dheeraj, Durgesh, Shiv Dayal have been nominated as named accused.
Gravamen of the allegations made in the F.I.R. is that about two months ago at around 7 p.m. when the prosecutrix/first informant was going to attend call of nature, at a short distance from her house, applicant Deepak Sahani was sitting in his verandah, who told her that her father had given some goods and she should collect the same. As she reached there, applicant Deepak Sahni dragged the prosecutrix/first informant in his house, where her modesty is alleged to have been dislodged by named accused.
Subsequent to aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. Investigating Officer recorded the statement of prosecutrix under Section 161 Cr. P. C on 23.8.2021. Same is on record as Annexure SA1 to the supplementary affidavit filed in support of bail application of Dinesh Sahni. Prosecutrix in her aforesaid statement has supported the prosecution story as unfolded in the F.I.R. Subsequent to above, prosecutrix was medically examined. Her medico legal report dated 16.6.2021 is also on record as Annexure SA2 to the supplementary affidavit filed in support of bail application of Dinesh Sahni. Prosecutrix in her statement before the Doctor who medically examined her has stated that occurrence giving rise to the present criminal proceedings occurred about 5 months ago. Thereafter, the prosecutrix was externally/internally examined. However, the Doctor who examined the prosecutrix did not find any injury on her body nor he discovered any such signs to denote the commission of penetrative sexual assault. Certain samples were also taken from the body of the prosecutrix for pathological examination. However, the result of the same is in negative The statement of the prosecutrix was recorded under Section 164 Cr. P. C. Same is on record as Annexure SA 3 to the supplementary affidavit filed in support of bail application of Dinesh Sahni. Prosecutrix in her aforesaid statement resiled from her earlier statement recorded under Section 161 Cr. P. C. as well as her statement before the Doctor. The prosecutrix has given a new description of the manner of occurrence. During course of investigation, Investigating Officer recovered the Certificate-cum-mark sheet of High School Examination undertaken by her, wherein her date of birth has been mentioned as 01.01.2004. As such, on the date of occurrence, prosecutrix was aged about 17 years, 5 months and 15 days. Ultimately on the basis of statements of witnesses recorded under Section 161 Cr. P. C. and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of the named accused is established. Accordingly,he submitted the charge sheet dated 18.10.2021, whereby four of the named accused namely Deepak Sahani, Ritesh Sahani, Dinesh Sahani, Dheeraj and not named accused Anita Sahani have been charge sheeted under Sections 376D, 120 B IPC, Sections 5/6 of POCSO Act and Section 67A IPC, whereas another named accused Shiv Dayal has been charge sheeted under Section 506 IPC only.
At the very outset, Mr. Ajeet Kumar Singh, learned counsel for applicant Dinesh Sahani submits that co-accused Ritesh Sahani, brother of the applicant Dinesh Sahani has already been enlarged on bail by this Court, vide order dated 20.1.2022 passed in Criminal Misc. Bail Application No. 44265 of 2021. For ready reference, same is reproduced herein under:-
"Heard Sri Ajeet Kumar Singh, learned counsel for the applicant and Shri Indra Prakash Srivastava, learned AGA for the State through video conferencing mode.
A first information report was lodged against the applicant as Case Crime No.180 of 2021 at Police Station-Sikandarpur, District-Ballia under Sections 376-D, 506, 120-B IPC and Section 5(g)/6 of the POCSO Act, 2012 and Section 67(A) of the I.T. Act.
The bail application of the applicant was rejected by learned Special Additional Sessions Judge, POCSO Court No.8, Ballia on 17.09.2021.
The applicant is in jail since 03.09.2021, pursuant to the said F.I.R.
Sri Ajeet Kumar Singh, learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. The victim in her statement under Section 164 Cr.P.C. has asserted that one Deepak had raped her. There is no allegation of rape or forceful assault against the applicant. It is alleged that the said Deepak has also circulated obscene photos of the victim on the internet. However, as per the statement of the father of the informant, the indecent photographs were promptly deleted and cannot be recovered. Apart from the instant case the applicant does not have any criminal history. Lastly it is submitted by learned counsel for applicant that the applicant shall not abscond, and will fully cooperate in the criminal law proceedings. The applicant shall not tamper with the evidence nor influence the witnesses in any manner.
Learned AGA for the State could not satisfactorily dispute the aforesaid submissions from the record. He, however, does not dispute the fact that the applicant does not have any criminal history apart from the instant case.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
I see merit in the submissions of learned counsel for the applicant and accordingly hold that the applicant is entitled to be enlarged on bail.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant-Ritesh Sahani be released on bail in Case Crime No.180 of 2021 at Police Station-Sikandarpur, District-Ballia under Sections 376-D, 506, 120-B IPC and Section 5(g)/6 of the POCSO Act, 2012 and Section 67(A) of the I.T. Act, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not influence any witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.
In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court."
On the aforesaid premise, learned counsel for applicant contends that case of the present applicant is similar and identical to co-accused Ritesh Sahani. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from co-accused Ritesh Sahani, so as to deny him bail. It is thus urged that for the facts and reasons mentioned in the order dated 20.01.2022 applicant is also liable to be enlarged on bail on the ground of parity.
It is then contended that applicant is a man of clean antecedents, inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 26.8.2021. As such, he has undergone more than seven months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Mr. Pawan Giri, Advocate, holding brief of Mr. Prateek Kumar Srivastava, learned counsel for applicant Dheeraj submits that case of present applicant is similar and identical to co-accused Ritesh Sahani. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from co-accused Ritesh Sahani, so as to deny him bail. It is thus urged that for the facts and reasons mentioned in the order dated 20.01.2022 applicant is also liable to be enlarged on bail. He has, further, adopted the arguments of Mr. Ajeet Kumar Singh.
It is also contended that applicant Dheeraj is a man of clean antecedents, inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 29.7.2021. As such, he has undergone more than seven months of incarceration. In case, applicant is enlarged on bail, he shall not misuse liberty of bail and shall co-operate with the trial.
Mr. Shashi Kant Shukla, learned counsel for applicant Deepak Sahani contends that vide order dated 20.01.2022 passed by this Court in favour of co-accused Ritesh Sahani, the main role has been assigned to applicant Deepak Sahani. However, irrespective of above, applicant is innocent and therefore, applicant Deepak Sahani is liable to be enlarged on bail.
According to Mr. Shashi Kant Shukla, learned counsel for applicant Deepak Sahani, the occurrence in question has occurred two months before the lodging of the F.I.R., and 5 months before the date on which the prosecutrix was medically examined. He, therefore, contends that there is delay in lodging the F.I.R. However, the delay in lodging the F.I.R. has neither been explained in the F.I.R. itself nor in the statement of the prosecutrix as recorded under Sections 161/164 Cr. P. C. He, therefore, contends that since the delay in lodging the F.I.R. itslef has not been explained, the prosecution of applicant cannot be maintained. He has relied upon paragraph 8 of judgement in P. Rajagopal Vs. State of Tamil Nadu, AIR 2019 SC 2866, which reads as under:-
"8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1].
In the matter on hand, the entire family of PW1 was at the mercy of Accused No. 1, who was very rich and influential. Accused No.1 acted as a benefactor to the family and had helped them financially and otherwise on multiple occasions. Under such circumstances, PW1 might have been reluctant to lodge a complaint immediately after the occurrence of the said incident, especially when Accused No. 1 had employed his henchmen to keep the house and movements of PW1 and her family under surveillance. Moreover, no material has been brought to our notice by the defence to prove that the delay in filing the F.I.R. was with the intention of false implication. Thus, the explanation given by PW1 for the delay remains untainted.
In our considered opinion, looking at the totality of the facts and circumstances, the Trial Court and the High Court were justified in condoning the delay and in concluding that the said delay was not vital to the case of the prosecution."
It is next contended that prosecutrix was medically examined after two months/five months from the date of occurrence. However, the medical evidence does not support the prosecution story. Referring to the judgement of Supreme Court in Vineet Kumar Vs. State of U.P., 2017 (16) SCC, 369, learned counsel for applicant contends that in the absence of any medical evidence supporting the prosecution story for an offence under Section 376 IPC, the applicant cannot be prosecuted for the said offence.
It is further contended that subsequently, the Apex Court has revised its opinion. It has now been held that an accused can be convicted for an offence under Section 376 IPC on the basis of sole testimony of the prosecutrix. However, in such a case, the statement of the prosecutrix must be clear, categorical and unambiguous. Drawing a parallel with the statements of the prosecutrix as recorded under Section 161 Cr. P. C., before the Doctor and under Section 164 Cr. P. C., he contends that when aforesaid statements are examined as a whole, the same do not fall in the category of impeccable evidence. Embellishment that has occurred in the statement of the prosecutrix in her statement under Section 164 Cr. P. C., remains unexplained. The departure from her earlier statement recorded under Section 161 Cr. P. C. creates a doubt on the prosecution story itself.
It is lastly contended that applicant Deepak Sahani is a man of clean antecedents, inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 15.09.2021. As such, he has undergone more than six and a half months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed this application for bail. He submits that applicants are named as well as charge sheeted accused. As such, they do not deserve any sympathy of this Court. However, he could not dispute the factual and legal submissions urged by learned counsel for applicants.
Having heard learned counsel for applicants, learned A.G.A. for the state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on the merits of the case, the applicants have made out a case for bail. Accordingly, bail applications are allowed.
Let the applicants Dinesh Sahani, Deepak Kumar Sahani and Dheeraj involved in aforesaid case crime number, be released on bail on their furnishing a personal bond with 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 they 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 their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under section 229-A I.P.C..
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them in accordance with law, under section 174-A I.P.C.
(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 applicants 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 them 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/applicants.
However, it is made clear that any wilful violation of above conditions by the applicant/applicants, shall have serious repercussion on his/her/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 :- 6.4.2022 HSM