Allahabad High Court
Dushyant Singh Kabir @ Loha Singh vs State Of U.P. on 25 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:148636 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30009 of 2023 Applicant :- Dushyant Singh Kabir @ Loha Singh Opposite Party :- State of U.P. Counsel for Applicant :- Lallan Chaubey,Jaishankar Prasad Tyagi Counsel for Opposite Party :- G.A.,Sandeep Kumar Dubey Hon'ble Rajeev Misra,J.
1. Heard Mr. Lallan Chaubey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sandeep Kumar Dubey, the learned counsel representing first informant/ opposite party-2.
2. Perused the record.
3. Instant application for bail has been filed by applicant-Dushyant Singh Kabir @ Loha Singh seeking his enlargement on bail in Case Crime No. 43 of 2023 under Sections 363, 366, 376 I.P.C., Police Station- Jansa, District-Varanasi, during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 28.02.2023 a delayed F.I.R. dated 01.03.2023 was lodged by first informant, Kallu Ram (the father of the prosecutrix) and was registered as Case Crime No. 43 of 2023 under Sections 363, 366, 376 I.P.C., Police Station- Jansa, District-Varanasi. In the aforesaid F.I.R. applicant-Dushyant Singh Kabir @ Loha Singh has been nominated as solitary named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that named accused enticed away the minor daughter of first informant namely Priti, who is is aged about 17 years.
6. After aforementioned F.I.R. was lodged, the Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 06.03.2023. Thereafter, the statement of the prosecutrix was recorded under section 161 Cr.P.C. Same is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has clearly and categorically stated that she herself accompanied the applicant. However, no wrong action was performed by applicant with her. The prosecutrix was thereafter medically examined. The Doctor who examined the prosecutrix did not find any sign on the body of the prosecutrix so as to denote commission of sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same was in negative. As per medical opinion, the prosecutrix is said to be aged about 18-19 years of age.
7. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has rejoined her earlier statement under Section 161 Cr.P.C. referred to above.
8. During course of investigation, Investigating Officer recovered High School Certificate of the prosecutrix wherein her date of birth is recorded as 08.10.2005. Occurrence giving rise to this application has occurred on 28.02.2023. As such on the date of occurrence prosecutrix was aged about 17 years 6 months and 18 days. Ultimately, Investigating Officer submitted charge-sheet dated 28.04.2023.
9. Learned counsel for applicant submits that though the applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. The prosecutrix is a willing and consenting party. Medical evidence does not support the charge under Section 376 I.P.C. The prosecutrix in her statement has also been categorical that her modesty was not dislodged by the applicant. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 07.03.2023. As such he has undergone more than four months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore contends that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
10. Per contra, the learned A.G.A. for State and the learned counsel representing first informant/opposite party-2 have vehemently opposed the prayer for bail. They submit that since the applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix was below 18 years of age on the date of occurrence. as such her consent if any is immaterial. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that the prosecutirx is a willing and consenting party, there is no medical evidence to show that charge under Section 376 I.P.C is established against applicant, the varied submissions urged by learned counsel for applicant as noted herein above which could not be dislodged by the learned A.G.A. or by the learned counsel representing first informant, clean antecedent of the applicant, period of incarceration undergone but without making any comments on the merits of the case, applicant has made out a case for bail.
12. Accordingly, present application for bail is allowed.
13. Let the applicant-Dushyant Singh Kabir @ Loha Singh involved in aforesaid case crime number be released on bail on his 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) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison.
Order Date :- 25.7.2023/YK