Allahabad High Court
Deepak Kumar vs State Of U.P. on 15 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:178836 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37881 of 2023 Applicant :- Deepak Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Mukesh Chandra Gupta,Shubham Prakash Gupta Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Shubham Prakash Gupta, the learned counsel for applicant-Deepak Kumar and the learned A.G.A. for State.
2. Perused the record.
3. Instant application for bail has been filed by applicant-Deepak Kumar seeking his enlargement on bail in Case Crime No.167 of 2023 under Sections 354B, 354C, 506, 376 I.P.C., Police Station-Hastinapur, District-Meerut, during the pendency of trial.
4.. Record shows that in respect of an incident, which is alleged to have occurred on 26.07.2023 a delayed F.I.R. dated 28.07.2023 was lodged by first informant-Smt. Rakhi Kaur and was registered as Case Crime No.167 of 2023 under Sections 354B, 354C, 506 I.P.C., Police Station-Hastinapur, District-Meerut. In the aforesaid F.I.R. the applicant-Deepak has been nominated as solitary named accused.
5. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of above-mentioned case crime number in terms of Chapter XII Cr.P.C. Thereafter, the statement of prosecutrix under Section 161 Cr.P.C. was recorded, which is on record at page 18A of the paper book. In her aforesaid statement, prosecutrix has supported the F.I.R. but has not made any allegation against applicant regarding commission of rape upon her. Thereafter, prosecutrix was medically examined. The prosecutrix in her statement before doctor, who medically examined the prosecutrix, has departed from her previous statement under Section 161 Cr.P.C. and now stated that forcible physical relations were maintained by the applicant with the prosecutrix. However, 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. With regard to private part of the prosecutrix, the doctor did not find anything abnormal. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has departed from her earlier statement under Section 161 Cr.P.C., but rejoined her statement made before the Doctor.
6. The learned A.G.A. submits that investigation is still going on.
7. Learned counsel for applicant contends that though the applicant is a named accused yet he is liable to be enlarged on bail. In the F.I.R. no allegation in respect of rape has been levelled against applicant. According to learned counsel for applicant though the F.I.R. is not the encyclopaedia of the prosecution case, but it must disclose the basic prosecution case. To buttress his submission, he has relied upon the following judgements of Supreme Court:
(i). Manoj and others Vs. State of Maharashtra, (1999) 4 SCC 268.
(ii). Subhash Kumar Vs. State ofUttarakhand, (2009) 6 SCC 641
8. On the above premise, the learned counsel for applicant submits that a departure has been made by the prosecutrix from the basic prosecution story as unfolded in the F.I.R., in the statement before the Doctor and thereafter in her statement under Section 164 Cr.P.C. The same amounts to exaggeration, embellishment and contradiction which remains unexplained upto this staged.
9. 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 02.08.2023. As such he has undergone approximately one and a half months of incarceration. It is thus urged 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 has vehemently opposed the prayer for bail. He submits that since the applicant is a named accused therefore no indulgence be granted by this court in favour of applicant. The prosecutrix in her statements under Sections 161 and 164 Cr.P.C. as well as in her statement before the Doctor has clearly implicated the applicant in the crime in question. The Act committed by applicant is not only illegal but also immoral. The same is not private in nature but against the society. As such applicant does not deserve any indulgence by this Court. However, he 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, 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 prosecutrix in her statement before Doctor as well as in her statement under Section 164 Cr.P.C. has departed form her earlier statement under Section 161 Cr.P.C., no explanation has been offered with regard to the embellishment made by the prosecutrix in her subsequent statement under Section 164 Cr.P.C., the embellishment, exaggeration and contradiction appearing in the statements of the prosecutrix recorded subsequently makes a departure from the basic prosecution story as unfolded in the F.I.R., in view of law laid down by Apex Court as noted herein above that though the F.I.R. is not the encyclopaedia of prosecution case, but it must disclose the basic prosecution case, F.I.R. was lodged by the prosecutrix herself, the omission on the part of the prosecutrix in the F.I.R. that rape was committed upon her but alleging the same in her subsequent statements is an after thought, the clean antecedents of applicant, the period of incarceration undergone by applicant and prima-facie there being no circumstance warranting continuance of custodial arrest of applicant, but without expressing any opinion 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-Deepak Kumar 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 :- 15.9.2023 YK