Allahabad High Court
Pappu vs State Of U.P. on 8 June, 2021
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9405 of 2021 Applicant :- Pappu Opposite Party :- State of U.P. Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
Heard Shri Radhey Shyam Shukla, learned counsel for the applicant and learned A.G.A. for State, perused the records.
The applicant is facing prosecution in Case Crime No. 244/2020 U/s 376D, 452 I.P.C. Police Station Jaitipur, District Shahjahanpur and is in jail since 11.09.2020 in connection with crime.
Submissions made by the counsel that the present FIR was got registered by one Amit Kumar under aforementioned sections of Penal Code for lthe 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 (present applicant) (2) Pappu son of Premraj (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. Thus from the aforesaid it is clear that right in front of informant?s eyes, who is the husband of the victim, all the named accused persons committed gang rape with his wife.
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 upon the wife. The wife in her 161 statement states that they have given a kick over her stomach and stuffed her mouth by cotton and committed gang rape with her. All of them have extended threat to become his wife. On making resistance, they have given a slap over her face.
In 164 Cr.P.C. statement of the victim, which was recorded on 15.09.2020 (Annexure No. 9), 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 consideration 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 medical opinion of doctor clearly indicates 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 having 164 Cr.P.C. statements that she remain unconscious for 5 good days without any medical assistance but she has given consent to the doctors for her internal medical examination on 01.09.2020. It was argued by learned counsel that, changing her stand in her 164, an attempt is being made by the alleged victim to bridge the time gap of five days in lodging the FIR.
The learned counsel for the applicant submits that the fact remains that informant?s father Manoj sold out his house to Pappu Bahelia 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 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 Pappu Bahelia 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 Pappu Bahelia, who were also named in this offence.
Ld. 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 infront 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 is not receiving 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 Pappu Bahelia and rest of the accused persons are his closed friends were also falsely roped in this offence.
Under these circumstances, the false implication on a cooked-up story, cannot be ruled out. Accordingly, the bail application is being allowed.
Let the applicant- Pappu, be released on bail in the aforesaid case crime number on 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) THE APPLICANT/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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 APPLICANT/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT/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 APPLICANT/APPLICANTS IS/ARE 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 HIS/HER/THEIR 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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 :- 8.6.2021 Abhishek Sri.