Allahabad High Court
Kuldeep vs State Of U.P. Thru. Prin. Secy. Home, ... on 17 July, 2023
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:46524 Court No. - 15 Case :- CRIMINAL APPEAL No. - 2056 of 2022 Appellant :- Kuldeep Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And 2 Others Counsel for Appellant :- Suraj Singh Visen,Aman Kumar Shrivastav,Shashi Rawat Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.
Heard Sri Suraj Singh Visen, learned counsel for the appellant and Mrs. Kamlesh Kumari, learned Additional Government Advocate for the State as well as perused the entire record.
This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 30.07.2022 passed by Special Judge (SC/ST Act), Raebareli by which the bail application of the appellant in Case Crime No. 129 of 2022, under Sections 366, 323, 506, 376 IPC and Sections 3(2)(5) of SC/ST Act, Police Station Sareni, District Raebareli bearing bail application No. 1821 of 2022; Kuldeep Vs. State of U.P., has been rejected.
As per the office report, this Court vide order dated 30.08.2022, issued notices to opposite parties nos. 2 and 3 and as per office report dated 17.12.2022, the notices have already been served upon opposite party nos. 2 and 3 as per report of Chief Judicial Magistrate, Raebareli but till date neither counter affidavit has been filed nor any counsel represents opposite party nos. 2 and 3, whereas the case was listed several times. Thus, it appears that opposite party nos. 2 and 3 are not interested to contest this matter.
The matter pertains to the bail application, thus this Court has no option but to proceed for final argument.
Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in the present case due to enmity and village party-bandi. It is further submitted that the FIR was lodged by the father of the prosecutrix on 25.03.2022 regarding the incident which happens on 21.03.2022. The plausible explanation regarding delay has not been given in the First Information Report. The First Information was lodged without any name and only mobile number has been given. As per the version of the First Information Report, the daughter of the complainant got missing, thereafter when the prosecutrix was recovered, her statement under Section 161 Cr.P.C. was recorded in which she has stated that she went with the appellant on her own freewill to Delhi and thereafter Jhajhar, State of Haryana and the appellant on the garb of providing job and false promise of marriage, made several times physical relation. Thereafter, her statement under Section 164 Cr.P.C. was recorded in which she has almost repeated the same version that the appellant on false promise of marriage and for providing job made several times physical relation with her but in her statement recorded under Section 164 Cr.P.C., she has made a contradictory statement that she went to Delhi with her own and met the appellant there, whereas in her statement recorded under Section 161 Cr.P.C., she has stated that she went with the appellant. The place mentioned in the statement recorded under Section 164 Cr.P.C. is Hatwala, whereas in the statement recorded under Section 161 Cr.P.C., she has stated that she went with the appellant to Jhajhar, State of Haryana. This contradictory statement falsifies the prosecution case.
Learned counsel for the appellant further submits that the allegation of rape also got demolished after perusal of the medical report, wherein the doctor in his report has clearly opined that no external or internal injury is present on the person of the prosecutrix. The prosecutrix is aged about 22 years, she is major and she knew the consequences very well. Further, there was no injury on the private part of the prosecutrix and the urine pregnancy test is also negative. In the medical report also the age of the prosecutrix appears to be 22 years, as her date of birth is 20.08.2000. Learned counsel for the appellant further submits that the parties appears to be consenting parties and only with the fear of family members, the prosecutrix has changed the version in her statements recorded under Sections 161 and 164 Cr.P.C. Even though, if the case of the prosecutrix appears to be true, the false promise of marriage has been made by the appellant and thereafter physical relation was made. Learned counsel further submits that the appellant has not played any fraud or misrepresented the fact as the prosecutrix is major and she knew the consequences of making physical relation with the appellant on her own sweet will. Thus, he submits that it is not amount to rape and in support of his arguments, learned counsel for the appellant has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608 and placed reliance upon paras 17 and 21, which are reproduced hereunder:-
"17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainants statement, she admitted that she was aware that there would be significant opposition from both the complainants and accuseds families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accuseds promise to marry the complainant was not of immediate relevance to the complainants decision to engage in sexual intercourse with the accused, which was motivated by other factors:[(2003) 4 SCC 46].
25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married (Emphasis supplied).
21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellants failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellants promise of marriage. Therefore, even if the facts set out in the complainants statements are accepted in totality, no offence under Section 375 of the IPC has occurred."
Thus, learned counsel for the appellant submits that appellant's case is covered with the aforesaid case and in view of the judgment rendered by the Hon'ble Supreme Court, the promise of marriage made by the appellant to the prosecutrix is in good faith as per the case set up by the complainant and it does not amount to rape as there is a consent of the prosecutrix. It is further submitted that even the medical report of the prosecutrix does not support the version of the prosecution as no internal or external injury was found on the person of the prosecutrix and as per the opinion of doctor, the age of the prosecutrix was 22 years, as such, allegation of rape levelled against the appellant is false and, therefore, the appellant is entitled for bail.
Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 14.04.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
On the other hand, learned AGA opposed the prayer for bail and submitted that the appellant has made several times physical relation with the prosecutrix, however, she does not dispute the fact that there is contradictions in the statements of the prosecutrix recorded under Section 161 and 164 Cr.P.C. but she prays that the bail application of the appellant may be rejected.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there are contradictions in the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C.; as per medical report, no internal or external injury was found on the person of the prosecutrix and her age was found to be 22 years; the prosecutrix appears to be consenting party and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22 and Pramod Suryabhan Pawar (Supra), this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.
Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 30.07.2022 passed by Special Judge (SC/ST Act), Raebareli by which the bail application of the appellant in Case Crime No. 129 of 2022, under Sections 366, 323, 506, 376 IPC and Sections 3(2)(5) of SC/ST Act, Police Station Sareni, District Raebareli bearing bail application No. 1821 of 2022; Kuldeep Vs. State of U.P., is hereby set aside and reversed.
Let the appellant, Kuldeep be released on bail in Case Crime No. 129 of 2022, under Sections 366, 323, 506, 376 IPC and Sections 3(2)(5) of SC/ST Act, Police Station Sareni, District Raebareli, with the following conditions:-
(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.
(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-
(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.
(b) 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, and
(c) 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.
(iii) The appellant shall cooperate with investigation /trial.
(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(vii) The appellant shall remain present, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant 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 him in accordance with law.
(viii) The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.
[Shamim Ahmed,J.] Order Date :- 17.7.2023 kkv/