Allahabad High Court
Dharmendra vs State Of U.P. And Another on 25 November, 2022
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL APPEAL No. - 3915 of 2022 Appellant :- Dharmendra Respondent :- State of U.P. and Another Counsel for Appellant :- Akhilesh Tripathi Counsel for Respondent :- G.A.,Hemendra Pratap Singh Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Akhilesh Tripathi, learned counsel for the appellant, Shri Ravindra Kumar Singh, learned A.G.A. for the State, Shri Hemendra Pratap Singh, learned counsel for the second respndent and perused the material on record.
The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Dharmendra to set aside the impugned order dated 27.5.2022, whereby the Special Judge (SC/ST Act), Bijnor has rejected the bail application No. 1228 of 2022 of the appellant moved by him in Case Crime No. 75 of 2022, under Sections 354-Kha, 506, 376, 511, 406, IPC and Section 3(2)(v) of SC/ST Act, Police Station Najibabad, District Bijnor.
Brief facts of the case are that the first information report dated 2.3.2022 was lodged by the victim stating that she paid Rs. 2,00,000/- to the appellant. After that she again paid Rs. 50,000/- for execution of sale deed for a plot of Trust. On 22.2.2022 at 12.00 noon when she was working in the sugarcane field, the appellant came there and caught hold the victim with bad intention. He threw the victim on the ground and attempted to commit rape with her. In the scuffle, blouse of the first informant was torn. After hearing hue and cry, her husband and other person Hori reached there and the appellant ran away from the spot threatening with dire consequences.
After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 3.3.2022. Medical examination of the victim was also conducted on 3.3.2022. Statement of the victim under Section 164, Cr.P.C. was recorded on 8.3.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant on 17.5.2022. The appellant was arrested on 16.5.2022.
Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per allegation of the first information report as well as statement of the victim, husband of the victim was also working near the place of incident. It is further submitted that the first information report was lodged after about ten days of the incident. It is further submitted that as per statements of the victim recorded under Sections 161 & 164, Cr.P.C., there is no allegation of throwing the victim on the ground, as alleged in the first information report. There is material contradictions between the allegation of the FIR as well as statements of the victim recorded under Sections 161 & 164, Cr.P.C. It is further submitted that the offence punishable under Section 376/511, IPC is not made out against the appellant. Other offences are punishable up to 7 years imprisonment. It is further submitted that the appellant is languishing in jail since 16.5.2022. The appellant has no criminal history.
It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.
Per contra, learned A.G.A. and learned counsel for the second respondent have supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) As per allegation of first information report, Rs. 2,50,000/- was paid by the first informant to the appellant prior to the incident and sale deed with regard to the plot of Trust had not been executed;
(b) The victim was 50 years old at the time of the incident and the appellant was 53 years old at the time of the incident;
(c) There is material contradiction/improvement between the allegation of the FIR as well as statements of the victim recorded under Section 161 & 164, Cr.P.C. It would not be appropriate to discuss the same at this stage;
(d) Medical examination of the victim was conducted after ten days of the incident;
(e) The appellant is languishing in jail since 16.5.2022.
It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present criminal appeal is allowed and impugned order dated 27.5.2022 is set aside.
Let appellant/applicant, Dharmendra be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) 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.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, 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 of Cr.P.C.
(iv) The applicant 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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.
The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked ;
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 :- 25.11.2022 T. Sinha