Allahabad High Court
Mohammad Hazrat Azmal Shah vs State Of U.P. And Another on 4 August, 2022
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL APPEAL No. - 496 of 2022 Appellant :- Mohammad Hazrat Azmal Shah Respondent :- State of U.P. and Another Counsel for Appellant :- Satya Dheer Singh Jadaun Counsel for Respondent :- G.A.,Ayush Mishra,Prabha Shanker Mishra Hon'ble Sanjay Kumar Singh,J.
1- Heard Mr. Satya Dheer Singh Jadaun, learned counsel for the appellant, learned Additional Government Advocate for the State, Mr. Prabha Shankar Mishra, learned counsel appearing on behalf of the victim/informant and perused the record.
2- This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 16.12.2021 passed by learned Special Judge, SC/ST Act, Kaushambi in Bail Application No.111 of 2021, arising out of Case Crime No. 402 of 2020, under Sections 366, 376-D, 342, 504, 506 I.P.C. and Sections 3(2)5, 3(1)dha of SC/ST Act, 1989 at Police Station Karari, District Kaushambi.
3- Brief facts of the case are that on the application of the victim, F.I.R. has been registered on 15.12.2020 against three accused persons, namely, Santosh Pasi, who is uncle of the victim, Harimohan Yadav and Hariyale at Case Crime No. 402 of 2020, under Sections 376-D, 323, 315, 506 I.P.C., Sections 3/4 POCSO Act, 2012 and Sections 3(2)(va), 3(1)(dha) of SC/ST Act, 1989 at Police Station Karari, District Kaushambi. The allegation made in the application inter alia was that the accused by extending threat of life have been raping her for last two years at different places (at the house of her uncle and hotels at Allahabad). Her uncle Santosh also took money several times from Harimohan to get the dirty work done. F.I.R. also alleges that she became pregnant twice but the aforesaid named accused persons administered medicine to her to abort her.
During investigation, victim in her statement under Section 161 CrPC has narrated a different story and implicated the three new persons, namely, Azmal Shah (appellant), Lavlesh and Golu in place of named accused Santosh Pasi, Harimohan Yadav and Hariyale. Victim in her statement under Section 164 CrPC implicated Azmal Shah, Lavlesh and Birahi in place of Golu and stated inter alia that her marriage was solemnized with Gautam. She works as labour. She lodged F.I.R. of this case on the pressure of appellant-Azmal Shah and Lavlesh who have forced her, under the threat of life, to lodge a false case against her uncle Santosh Pasi, Harimohan Yadav and Hariyale by luring her with Rupees Ten lakh and a house, whereas she does not know Harimohan Yadav and Hariyale. She further stated that Lavlesh forcibly took her away from brick-kiln. Lavlesh and Azmal Shah made her hostage for four months and kept on raping her. When she tried to run away, then Azmal Shah, Lavlesh and Birahi took her somewhere by car and they forcibly committed rape on her for four days. In January 2021, Azmal Shah dropped her at a lawyer?s house, who used to take all the household chores from her. After three days, on getting opportunity, she ran away from there and came to the police.
4- Main substratum of argument of learned counsel for the appellant is that the appellant is not named in the F.I.R. As per ossification test report, victim is major and married lady. As per statement of her father, marriage of the victim was solemnized in April, 2019. The victim after lodging F.I.R. filed Criminal Misc. Writ Petition No. 546 of 2021 through her next friend Arun Kumar impleading the named accused Santosh Pasi, Harimohan Yadav and Hariyale as respondent nos.5, 6 and 7 seeking suitable direction for fair investigation. In the abovementioned writ petition, allegation of rape has been levelled against named accused raising her grievance that they have not been arrested. Apprehension has also been expressed that the Investigating Officer is in collusion with named accused persons. Subsequently, after recording her statement under Section 164 CrPC, said writ petition was dismissed on 10.02.2021. Thereafter, the victim has filed another Criminal Misc. Writ Petition No. 4735 of 2021 impleading Azmal Shah @ Baba and Golu as respondent nos.4 and 5 again seeking direction for fair investigation, which was disposed of vide order dated 02.07.2021 directing the Investigating Officer to investigate the matter in fair and unbiased manner. She in her statements under Section 161 and 164 CrPC has completely changed her version in collusion with police and under pressure of accused person who are named in F.I.R. and falsely implicated the appellant-Azmal Shah, co-accused Lavlesh, Golu and Birahi making concocted allegations of rape, etc. against them. Much emphasis has been given by contending that there is material contradictions in the version of F.I.R., statements under Section 161 and 164 CrPC of the victim, which is indicative of false implication of the appellant on the face of record itself. It is next submitted that there is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. The appellant is languishing in jail since 07.12.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case. It is next pointed that co-accused Golu has been granted bail by the concerned Court below.
It is also submitted that due to political rivalry with named accused Harimohan Yadav, apart from present case the appellant has also been falsely implicated in following other cases:-
i- Case Crime No.506 of 2004, under Sections 21/22 N.D.P.S. Act, Police Station G.R.P. Kanpur Central, District Kanpur Nagar, in which recovery of diazepam of below commercial quantity was shown and appellant is on bail vide order dated 07.10.2004 of this Court.
ii- Case Crime No. 225 of 2018, under Sections 452, 376 I.P.C., Police Station Karari, District Kaushambi, in which final report has been submitted.
iii- Case Crime No.286 of 2018, under Sections 376, 506 I.P.C., Police Station Karari, District Kaushambi.
With regard to Case Crime No.286 of 2018, rival submissions of learned counsel for the parties are as under:-
a- Learned counsel for opposite party no. 2 submits that in the said case, final report dated 14.06.2019 was submitted by the Police. Thereafter, victim filed a protest application dated 18.02.2019 against the said final report, which was allowed vide order dated 11.01.2021 and after rejecting the final report dated 14.06.2019, appellant has been summoned under Sections 376, 506 I.P.C. to face trial.
b- In reply, Mr. Satya Dheer Singh Jadaun, learned counsel for the appellant submits that in fact no such protest application was filed by the victim in aforesaid Case Crime No.286 of 2018 but the same was managed and got filed by Harimohan Yadav engaging a counsel, who impersonating himself to be a counsel for victim contested the final report dated 14.06.2019. As soon as, victim of that case came to know about the order dated 11.01.2021, she has moved an application dated 24.08.2021 before the court of Civil Judge (Junior Division), Kaushambi mentioning that she has not filed any protest application against the final report submitted in favour of Azmal Shah (appellant). She has further mentioned that one Hari Mohan Yadav, who is having enmity with Azmal Shah, in order to falsely implicate him, got a protest application filed on her behalf engaging a counsel, whereas she has not engaged any counsel and the application dated 24.08.2021 is pending before the Court.
c- In order to know the correct fact regarding application dated 24.08.2021 filed in Case Crime No.286 of 2018, report was called from the concerned presiding officer vide order dated 12.04.2022 of this Court. In compliance thereof, District Judge, Kaushambi has submitted his report dated 04.05.2022 to this Court mentioning that victim was summoned by the concerned Court below and her statement was recorded on 02.05.2022, in which she has stated inter alia that she has not filed protest application dated 24.08.2022 against the final report and does not want any further proceeding against the accused-appellant.
iv- Case Crime No.0129 of 2019, under Sections 376-D, 376(2)(i), 506 I.P.C., Sections 3/4 POCSO Act, 2012 and Sections 3(2)(v) of SC/ST Act, 1989 Police Station Karari, District Kaushambi, the victim in her statement 164 CrPC did not support the prosecution case and the said case was expunged by the police.
v- Case Crime No.0029 of 2022, under Sections 2/3 U.P. Gangsters & Anti Social Activities (Prevention) Act, 1986, Police Station Karari, District Kaushambi, in which bail application of the appellant is pending.
5- Per contra, learned A.G.A. for the State as well as learned counsel for the victim/opposite party no.2 submitted that on 28.10.2020, victim left her house and thereafter her whereabouts was not known. On the next day, victim?s brother gave a missing report to police. It is next submitted that Harimohan Yadav is Block Pramukh of district Kaushambi and Azmal Shah is also actively involved in local politics, therefore, there is political rivalry between them. Since victim was in captivity of Azmal Shah, Lavlesh and Birahi, therefore, they, in order to save their skin and with a view to cause irreparable loss and injury to Harimohan Yadav, managed the victim under the threat of her life and succeeded in getting the F.I.R. lodged after procuring her signature on already typed matter taking the benefit that she is an illiterate and poor lady. Anyhow victim succeeded in fleeing away from the captivity of the accused persons. Later on, she in her statements under Section 161 and 164 CrPC has disclosed the true facts and modus-operandi adopted by the newly added accused persons.
6- Having heard the learned counsel for the parties and considering the facts of this case, prima-facie it is apparent that there is enmity between the appellant Azmal Shah and Hari Mohan Yadav who is named accused in F.I.R. Though the allegations of rape, etc. are heinous in nature but under the facts of the case, the act and conduct of the victim are also suspicious because she is major and married lady, hence she is capable to understand the things. She in her statement under Section 164 CrPC has stated inter alia that she has lodged F.I.R. of this case on the pressure of Azmal Shah and Lavlesh who have forced her under the threat of life to lodge a false case against her uncle Santosh Pasi, Harimohan Yadav and Hariyale by luring her with Rupees Ten lakh and a house, whereas she does not know Harimohan Yadav and Hariyale. The statement of victim shows that F.I.R. was not lodged behind her back by some other person but she consciously lodged F.I.R. knowing that contents of F.I.R. are false, therefore, at this stage under the facts of the case, her statement cannot be treated as gospel truth. Under the peculiar facts of this case, it cannot be ascertain at this stage that as to which stand/allegation of the victim is correct, which can only be elicited and properly adjudicated after leading evidence before the trial Court. This Court is conscious that statement of victim is a primary consideration but under the law there is no presumption against the accused. Each case depends on its own facts. It cannot be said that in all the cases, victim shall always narrate the prosecution case truthfully. From the report dated 12.04.2022 of concerned Court below based on statement dated 02.05.2022 of victim as noted in preceding para no.4 (iii)(c), prima facie false implication of the appellant and filing of forged protest application by manipulation on behalf of victim behind her back in Case Crime No.286 of 2018 is apparent on record. Here it would also be relevant to mention that considering the facts mentioned in both the above Writ Petitions Nos.546 of 2021 and 4735 of 2021 filed by the victim as noted above, I find that the allegations levelled by her do not inspire confidence as she has also not come with clean hand before this Court. Learned counsel for the appellant during his argument also pointed out that In-charge Inspector of Police Station-Karari, District Kaushambi has wrongly shown criminal history of two other cases being Case Crime No. 59 of 2020, under Section 323, 504, 506 IPC and 280 of 2018, under Section 354A, 323, 504, 506 IPC and Section 7/8 POCSO Act both registered at police station-Karari, district Kaushambi while appellant has no concern with the said cases. Explanation was called in this regard. Thereafter, Subhash Kumar Yadav, In-charge Inspector of police station-Karari, district Kaushambi filed his personal affidavit dated 02.08.2022 tendering apology mentioning that same has been wrongly shown in the list of criminal history of the appellant on the basis of DCRB report. Since victim during investigation in her statements under Section 161 and 164 CrPC has not supported her own version as mentioned in the F.I.R and has narrated entirely different story implicating four new persons, namely, Azmal Shah (appellant), Lavlesh, Golu and Birahi in place of named accused Santosh Pasi, Harimohan Yadav and Hariyale, therefore, possibility of false implication of the appellant cannot be ruled out. It is also well settled that benefit of doubt goes in favour of accused. Further details relating to the incident need not to be referred to herein since the allegations and the defence thereto is still open to be urged by the parties in the trial Court.
7- In view of the above, this Court is of the view that the appellant has made out a case for bail. The Court below erred in rejecting the bail application of the appellant. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.
8- Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.
9- Let the appellant-Mohammad Hazrat Azmal Shah involved in the above Case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The appellant will not tamper with the evidence during the trial.
(ii) The appellant will not pressurize/intimidate the prosecution witness.
(iii) The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
(v) The appellant shall not directly or indirectly make any 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 or to any police officer or tamper with the evidence.
10- In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
11- Observations made hereinabove are confined to the prayer for bail only and it will not affect the merits of the trial.
12- Taking into the consideration the nature of the offence, trial Court shall make all efforts to conclude the trial and disposed of the case as expeditiously as possible without granting unnecessary adjournment to the either of the parties.
Order Date :- 4.8.2022 Shubham