Allahabad High Court
Gautam Kumar Vishwakarma vs State Of U.P. And 3 Others on 7 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:158171 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32308 of 2023 Applicant :- Gautam Kumar Vishwakarma Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mahabir Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Mahabir Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Santosh Kumar Singh Paliwal, the learned counsel representing first informant-opposite party-2.
This application for bail has been filed by applicant Gautam Kumar Vishwakarma seeking his enlargement on bail in Case Crime No.206 of 2022, under Sections 363, 366, 376, 506, 323 IPC, Section 3/4 Pocso Act, Sections 66, 67 Information Technology Act and Section 3(2)5 SC/ST Act, police station Gagaha, district Gorakhpur, during the pendency of trial.
Perused the record.
Record shows that a first information report dated 11.06.2022 was lodged by first informant/prosecutrix, namely, Deepa Kannaujia, which was registered as Case Crime No.0206 of 2022, under Sections 363, 376, 506, 323 IPC, Section 3/4 Pocso Act, Sections 66, 67 Information Technology Act and Section 3(2)(V) SC/ST Act, police station Gagaha, district Gorakhpur. In the aforesaid F.I.R., four persons, namely, Gautam Vishwakarma (applicant herein), Achyutanand Vishwakarma, Gyanendra Gaur and Awadhesh Gupta have been nominated as named accused.
The allegations have been made in the first information report without mentioning the day, date and time of the occurrence in the requisite column of the FIR. No details have been mentioned in the body of the FIR either. The FIR states that initially an incident had occurred three years ago in which the prosecutrix was kidnapped and her obscene video was prepared. The FIR further states that thereafter again, on 05.01.2022, the prosecutrix was kidnapped, an obscene video was made and an attempt to dislodge the modesty of the prosecutrix by committing rape upon her by the named accused. The FIR concludes with the allegation that the said video has been made viral and threat is being extended to the prosecutrix.
After aforesaid first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime number in terms of Chapter XII CrPC. Thereafter, the statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 36 of the paper book. The prosecutrix in her aforesaid statement has rejoined the allegations made in the FIR. However, the day, date, time and place of occurrence which are alleged to have occurred prior to the lodging of the FIR on different dates have not been specified. Thereafter, the prosecutrix was requested for her internal medical examination, which was refused by her. However, as per the medical opinion, which is on record at page 42 of the paper book, the age of the prosecutrix was said to be about 18 years. Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 38 of the paper book, wherein she has rejoined her earlier statement under Section 161 CrPC.
During the course of investigation, Investigation Officer examined other witnesses under Section 161 CrPC. On the basis of above and other material collected by him during the course of investigation, he came to the conclusion that upto this stage the complicity of one of the named accused Gyanendra Gaur is established in the crime in question. Accordingly, charge-sheet dated 08.09.2022 was submitted against named accused Gyanendra Gaur whereby he has been charge-sheeted under Sections 363, 366, 376, 506, 323 IPC, Section 3/4 Pocso Act, Sections 66, 67 Information Technology Act and Section 3(2)(V) SC/ST Act. Subsequently, charge-sheet dated 11.07.2023 was submitted against the applicant Gautam Kumar Vishwakarma, whereby applicant has been charge-sheeted under Sections 363, 366, 376, 506, 323 IPC, Section 3/4 Pocso Act, Sections 66, 67 Information Technology Act and Section 3(2)(V) SC/ST Act.
Learned counsel for the applicant contends that the applicant is innocent. He has been falsely implicated in aforementioned case crime number. Irrespective of the fact that applicant is a named as well as charge-sheeted accused, yet he is liable to be enlarged on bail. He has then invited the attention of Court to the FIR giving rise to the present criminal proceeding. On the basis of recital contained therein he submits that firstly no details with regard to the day, date, time and place of occurrence have been mentioned in the requisite column of the FIR. The FIR does not clearly specify the dates on which the occurrences had occurred. However going by the FIR the first occurrence is alleged to have occurred three years prior to the lodging of the FIR. On the cumulative strength of above, he contends that the FIR is highly belated. However, neither in the FIR nor in the statements of the prosecutrix, referred to above, any explanation regarding delay in lodging the FIR has been offered. Referring to the judgement of the Apex Court in P. Rajagopal Vs. The State of Tamil Nadu AIR 2019 SC 2866 (paragraph 8), learned counsel for applicant contends that since the delay in lodging the FIR has not been explained, the prosecution of the applicant itself cannot be maintained. It is next contended by the learned counsel for applicant that though the FIR was lodged on 11.06.2022 but the applicant was arrested on 25.06.2023 and the charge-sheet has been submitted only on 11.07.2023. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial.
According to the learned counsel for applicant, there is no medical evidence to support the charges alleged in the FIR against applicant and other accused except co-accused Gyanendra Gaur. In the absence of any medical evidence the charge alleged against applicant that an attempt to commit rape upon the prosecutrix was made by applicant and other accused except Gyanendra Gaur is not worthy of reliance. Learned counsel for applicant has then referred to the document occurring at page 57 of the paper book, which is a report of Cyber Cell, Gorakhpur. On the basis of recital contained therein, he contends that during the course of investigation, it was discovered that the parties were acquainted with each other since long and the present criminal proceeding has been engineered maliciously. The credibility and the reliability of the prosecutrix is also doubted by relying on the above document. Even otherwise, applicant is a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. The applicant is in jail since 25.06.2023. As such he has undergone more than one month of incarceration. It is thus contended by the learned counsel for applicant 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.
Per contra, the learned A.G.A. and the learned counsel representing first informant 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. Attention of the Court was invited by the learned A.G.A. to the order dated 20.01.2023 passed by this Court in Criminal Misc. Bail Application no.38893 of 2022 (Gyanendra Gaur Vs. State of U.P. and 3 others). For ready reference, the order dated 20.01.2023 is reproduced herein-under :-
"Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the record.
The present bail application has been filed on behalf of applicant in Case Crime No. 206 of 2022, under Sections 363, 376D,506,323 of IPC and Section 5/6 of P.O.C.S.O. Act and Section 66/67I.T. Act, and Section 3(2)(V) of SC/ST Act, Police Station Gagaha, District Gorakhpur with the prayer to enlarge the applicant on bail.
It has been argued by learned counsel for the applicant that applicant is innocent and he has been falsely implicated in the present case. It is submitted that no allegation of committing rape is made against the applicant by the victim in her statement under Sections 161, 164 CrPC, all the allegations of rape are made against Gautam Vishwakarma. There is contradiction about date of occurrence in the statement of victim under Sections 161, 164 CrPC. It is further submitted that the victim refused to undergo for medical examination. It is further submitted that SP Crime, District- Gorakhpur in his report dated 16.05.2022 found that the video of the victim was made viral by the Mobile No. of applicant. It is further submitted that applicant is languishing in jail since 12.07.2022 having no criminal history and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Per contra, the learned Additional Government Advocate as well as learned counsel for the informant have opposed the prayer for grant of bail and argued that the applicant is named in the FIR, specific role for the applicant has been assigned by the victim under Sections 161, 164 CrPC. The date of birth of the victim was 01.01.2005, she was minor. It is further submitted that the father of the victim is disabled person and the mother of the victim is deaf and dumb. On the basis of inquiry it was observed that objectionable video was made viral by the Mobile No. of applicant.
Considering the submissions of learned counsel for the parties, nature of allegations and gravity of offence, without expressing any opinion on the merits of the case, the Court is of the opinion that no case for grant of bail is made out. Hence, the bail application is hereby rejected.
Any observation made above shall not be treated as any finding on the merit and shall not prejudice the trial."
On the basis of above, he thus urged that since the criminality committed by the named accused including present applicant is joint and common therefore, incapable of being separated or segregated. As such, no sympathy be shown by this Court in favour of applicant. Since the case of present applicant is almost similar and identical to that of co-accused Gyanendra Gaur therefore, the present application for bail is liable to be rejected.
In rejoinder, the learned counsel for applicant tried to distinguish the case of present applicant from that of co-accused Gyanendra Gaur on the basis of recital contained in the aforementioned order. He contends that the allegations with regard to commission of rape upon the prosecutrix have been levelled against the applicant. With reference to the FIR, he submits that it is an admitted case of the prosecutrix that only an attempt to commit rape was made but her modestly was not dislodged in real terms. The medical evidence does not support the ocular version of the occurrence. The video regarding obscene material pertaining to the prosecutrix was not made viral by the applicant but by the co-accused. Accepting the finding returned by this Court in the aforesaid order, he contends that the case of the present applicant is clearly distinguishable from the case of co-accused Gyanendra Gaur. He thus contends that applicant is liable to be enlarged on bail.
Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made coupled with the fact that there is delay in lodging the FIR, the delay in lodging the FIR has not been explained either in the FIR or in the statement of the first informant recorded under Section 161 CrPC, by virtue of the law laid down by the Supreme Court in P. Rajagopal (supra) the prosecution of the applicant itself cannot be maintained, the FIR itself records that an attempt to commit rape was made however the medical evidence does not support the ocular version of the occurrence, the order dated 20.01.2023 passed by this Court against co-accused Gyanendra Gaur is clearly distinguishable qua the applicant inasmuch as this Court has itself recorded a finding that obscene video was made viral by co-accused Gyanendra Gaur, the charge-sheet has been submitted against applicant and therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, however neither the learned A.G.A. nor the learned counsel representing first informant could point out any such incriminating circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5), the clean antecedents of the applicant inasmuch as he has no criminal history to his credit except the present one, the period of incarceration undergone, but without making any comments on the merit of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Gautam Kumar Vishwakarma, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(iii) 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., may be issued and if 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 I.P.C.
(iv) The applicant 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 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.
(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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 7.8.2023.
Rks.