Allahabad High Court
Shankar Sonkar @ Pakhandu vs State Of U.P. on 30 April, 2024
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:77415 Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14432 of 2024 Applicant :- Shankar Sonkar @ Pakhandu Opposite Party :- State of U.P. Counsel for Applicant :- Desh Ratan Chaudhary,Siddharth Chaudhary Counsel for Opposite Party :- G.A.,Jitdendra Kumar Shukla Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Siddharth Chaudhary, learned counsel for the applicant, Mr. Jitendra Kumar Shukla, learned counsel for the informant as well as learned AGA for the State and perused the material on record.
2. The instant bail application has been filed on behalf of the applicant, Shankar Sonkar @ Pakhandu with a prayer to release him on bail in Case Crime No.178 of 2023, under Sections 376, 504 and 506 I.P.C., Police Station ? Madihan, District ? Mirzapur, during pendency of trial.
3. As per the allegations in the FIR lodged on 20.12.2023 at 09.38 hours against the applicant and one unknown person through an application under Section 156(3) Cr.P.C. alleging therein that on 27.08.2023 at about 5:00 pm when the victim after working in her fields was returning to her house, the applicant alongwith one unknown person caught hold of her and forcefully after using bad words touched her private parts. When the victim tried to raise an alarm, they forcefully put a piece of cloth (gamcha) on her mouth and after pushing her in the fields, tore her cloths and the applicant put his fingers on the victim's private part. The victim could not escape despite putting all her efforts. When she tried to escape from the clutches of the applicant, the unknown person placed a countrymade pistol and caught hold of her. They again repeated the same by touching the victim's private parts and also snatched her gold chain. At the time of incident, fortunately victim's husband alongwith two other persons were coming to the place of incident while talking to each other. Hearing the voice of the victim's husband, the aforesaid persons after using abusive language went away threatening the victim that in case she shares about the incident with anyone, they will kill her. The victim's husband and the other two persons reached the place of incident and tried to catch hold of the applicant and the unknown person. While running away, the aforesaid persons i.e. the applicant and the unknown person fired shot by the countrymade pistol but that did not hit the victim's husband and he was luckily saved. When the victim shared the entire incident with her husband, they went to the police station to get an FIR lodged.
4. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. In the statement recorded under Section 161 and 164 Cr.P.C., though the victim has narrated the entire incident, however, the fact about snatching a golden chain is missing and the fact about using the countrymade pistol to shoot at the victim's husband is also missing. From the entire story as narrated in the version of the FIR as well as statement recorded under Section 161 and 164 Cr.P.C,, it is clear that a false story has been build up and the victim has also refused to get herself medically examined because she was well aware of the fact that in case the medical is conducted, the same would not support her version as narrated about the incident in the FIR. He has stated in paragraph no.14 about the reasons for false implication, wherein the applicant has made several complaints against the husband of the victim regarding illegal encroachment over chak road and gaon sabha land and the same has been removed on his complaint. Annoyed by the same, the present complaint has been lodged.The reasons for false implication are detailed in paragraph no.14 of the bail application which are quoted below:-
"A. The applicant Shankar Sonkar @ Pakhandu is a prosecution witness in NCR No.46/2023 (Case Crime No. 86/2023) which has been lodged by one Amit Kumar against Tej Narayan (husband of the prosecutrix) and against one Anil. A true copy of the charge sheet of the aforesaid case is being filed herewith and marked Annexure No.7 to this affidavit.
B. The aforesaid Tej Narayan had lodged Case Crime No. 44/2023 u/S 323, 504, 506 IPC, police station Madihan, District Mirzapur by moving an application u/S 156(3) Cr.P.C. against the applicant and others which was registered as complaint. A true copy of the aforesaid application and the order dated 12.07.2023 passed by learned Magistrate are collectively being filed herewith and are marked as Annexure No.8 to this affidavit.
C. The aforesaid Tej Narayan moved another complaint dated 07.12.2022 against the applicant and others u/S 323, 504, 506, 325, 452, 379, 427 IPC, police station Madihan, District Mirzapur which is also pending before the learned Magistrate. A true copy of the complaint dated 07.12.2022 lodged by Tej Narayan is being filed herewith and marked as Annexure No.9 to this affidavit.
D. That another complaint dated 03.11.2023 which got lodged by Tej Narayan against the applicant and others through his neighbour Shiv Kumar u/S 323,392,452,504,506 IPC and in this complaint c become a prosecution witness. A true copy of the aforesaid complaint giving rise to complaint case no. 10428/2023 (Shiv Kumar @Shankar vs. Pakhandu and others) is being filed herewith and marked as affidavit. Annexure No.10 to this affidavit.
E. That the applicant had also made complaint against Tej Narayan with regard to their illegal encroachment over the chak road and gaon sabha land which was entertained and their encroachment have been removed. A true copy of the aforesaid complaint dated 03.08.2023 lodged by the applicant against Tej Narayan and Anil Sonkar and the order dated 29.03.2023 passed thereupon are collectively being filed herewith and are marked as Annexure No.11 to this affidavit.
F. That another case was falsely lodged against the applicant as Case no. 202/2023 u/S 2/9/34/51 of the Wild Life Protection Act, 1972 against the applicant and his family members by Lavkush Singh who is closely associated with Tej Narayan and Shiv Kumar Singh etc. and when after post mortem, the case was found to be false. The aforesaid persons filed a Criminal Misc. Writ Petition No. 12668/2023 before this Hon'ble Court impleading the applicant and his family members as respondents. A true copy of the First Information Report of the aforesaid case and a true copy of the post mortem report of the animal (peacock) and a true copy of the memo of the Criminal Misc. Writ Petition No. 12668/2023 showing the array of parties are collectively being filed herewith and are marked as Annexure No.12 to this affidavit."
He further submits that it is a clear case of false implication.
5. Mr. Jitendra Kumar Shukla, learned counsel for the informant however, vehemently opposed the bail prayer and stated therein that one more FIR has been lodged under Section 376 by another lady.
6. Learned counsel for the applicant on the aforesaid submits that the bail application for the aforesaid is pending and also submits that it is also a case of false implication. The criminal history of the applicant has been explained in paragraph no.14 of the bail application. The applicant is languishing in jail since 02.01.2024. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.
7. Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre-trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
8. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:-
"We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."
9. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.
10. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.
11. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because he is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned A.G.A. has not shown any exceptional circumstances which would warrant denial of bail to the applicant.
12. The object of the bail is to secure the attendance of the accused, the detention of the accused pending trial cannot be punitive in nature as there is presumption of innocence in favour of the accused person. Learned A.G.A. has not brought any facts and circumstances to demonstrate that the character of the accused-applicant (s) is such that his mere presence at large would intimidate the witness.
13. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, the period of detention of the applicant for the alleged offence, submissions of learned counsel for the parties, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
14. Let the applicant involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/intimidate the prosecution witness.
(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(iv) The applicant 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 applicant 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.
(vi) The applicant shall not leave India without the previous permission of the Court.
(vii) In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing.
(viii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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.
15. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court.
16. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the present bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 30.4.2024 Kalp Nath Singh