Allahabad High Court
Ashok Yadav vs State Of U.P. And 3 Others on 1 December, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Order reserved on : 2.11.2022
Order delivered on : 1.12.2022
Court No. - 93
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21479 of 2022
Applicant :- Ashok Yadav
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Vijit Saxena,Sr. Advocate,Vikram Singh Shrivastava
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. G.S. Chaturvedi, the learned Senior counsel assisted by Mr. Vijit Saxena, the learned counsel for applicant and the learned A.G.A. for State.
2. This application for bail has been filed by applicant Ashok Yadav seeking his enlargement on bail in Case Crime No. 67 of 2020, under Sections 302, 376, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Talbehat, District Lalitpur during the pendency of trial.
3. Perused the record.
4. Record shows that in respect of an incident, which is alleged to have occurred on 4.4.2020, a delayed F.I.R. dated 05.04.2020 was lodged by first informant Kripal Singh Yadav and was registered as Case Crime No. 67 of 2020, under Sections 302, 376, 323, 506 IPC and Section 3/4 POCSO Act, P.S. Talbehat, District Lalitpur. In the aforesaid F.I.R., two persons namely Ashok Yadav (applicant herein) and Smt. Rachna (wife of applicant) have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that on account of the conduct of named accused, daughter of first informant immolated herself in the back yard of the house of named accused on account of which she sustained burn injuries.
6. Prior to the lodging of the F.I.R. dated 5.4.2020, the injured was taken to hospital for immediate medical treatment on 4.4.2020. As per the injury form of the injured prepared subsequent to her Medico Legal Examination the injured in the opinion of the Doctor had examined her had sustained "superficial and deep burn injuries all over the body except both lower limb from mid thigh and left hand about 75%." After initial treatment the injured was discharged from Manyawar Kanshi Ram Hospital, Lalitpur, District Jhansi and referred to Medical College, Jhansi for further and better treatment.
7. On the same day i.e. 5.4.2020, Investigating Officer visited the place of occurrence. He recovered the burned clothes of the prosecutrix including her lower under garment, as well as an empty bottle from which smell of kerosene was coming out. He, accordingly, prepared a recovery memo of the same. It is apposite to mention here that the place of occurrence is the backyard of the house of applicant.
8. Subsequent to above, Investigating Officer recorded the statement of the prosecutrix on 5.4.2020. The prosecutrix in her aforesaid statement has supported the F.I.R. She has however stated that she immolated herself on account of the act and conduct of named accused.
9. On 8.4.2022, while the prosecutrix/injured was undergoing treatment, her dying declaration was recorded at Medical College Gwaliar. The Doctor first certified that patient is conscious and is in a position to give her statement. In the aforesaid dying declaration, the prosecutrix has detailed the manner of occurrence by stating that applicant Ashok Yadav, first removed her clothes and thereafter dislodged her modesty by committing rape upon her. When the prosecutrix shouted her aunt (chachi) also came on the spot who assaulted the prosecutrix and threatened to kill the family of the prosecutrix. Thereafter, applicant is alleged to have poured kerosene upon prosecutrix and the aunt (chachi) alighted the match on account of which prosecutrix got burned.
10. On 14.5.2020, the statement of the first informant namely, Kripal Singh Yadav, father of the prosecutrix was recorded. The first informant has supported the F.I.R. and has also detailed about the subsequent events that have occurred.
11. Inspite of the fact that the first dying declaration of deceased was duly recorded yet the second dying declaration of the prosecutrix was got recorded on 14.5.2020 by Naiab Tehsildar Jhansi. In the aforesaid dying declaration, the prosecutrix has departed from her earlier dying declaration. She has now stated that when applicant proceeded to dislodge her modesty by removing her clothes, her aunt (chachi) assaulted her. Thereafter, she alleges to have gone to her home and thereafter carried the bottle of kerosene oil with her and then immolated herself in the backyard of the house of Shishu pal.
12. Ultimately, the prosecutrix/injured died on 16.4.2020, while she was undergoing treatment at Gwaliar. Thereafter the post-mortem of the body of deceased was conducted on the next day i.e. 17.4.2020. The Doctor who conducted the autopsy on the body of the deceased opined as follows regarding the death of the deceased/prosecutrix:
Death was due to cardio respiratory failure as a result of Burn injuries and its complications. Viscera has been preserved for chemical analysis, along with vaginal slide and swab, sealed and handed over to police constable concerned. Duration of death is within 24 hours since postmortem examination.
Signs of hospitalization present.
Extra page 5a attached.
13. However, the viscera of the deceased was preserved for chemical examination. The viscera report of the prosecutrix has been brought on record. According to learned A.G.A. the viscera report of the deceased dated 22.9.2020 is part of the case diary. However, no chemical/poison was found in the samples of the body of the deceased.
14. Certain samples were taken from the body of deceased for D.N.A. examination. The D.N.A. report of the deceased has also not been brought on record and is at page 65 of the paper book. As per the said report it has been observed that male spermotozoa was found in the sample but as the DNA profile was partially generated, therefore, no final opinion can be given.
15. On the basis of above, and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that prima facie the complicity of named accused is established in the crime in question. Investigating Officer accordingly submitted the charge sheet dated 23.6.2020, whereby named accused Ashok Yadav i.e. applicant herein has been charge sheeted under sections 302, 376, 323, 506 IPC and Sections 3/4 POCSO Act, whereas another named co-accused Smt. Rachna has been charge sheeted under sections 302, 323 and 506 IPC.
16. After submission of aforementioned charge sheet, cognizance was taken upon same by court concerned. As offence complained of is exclusively triable by Court of sessions, concerned Magistrate accordingly committed the case to the Court of Sessions. Resultantly, Special Sessions Trial No. 237 of 2020 (State Vs. Ashok Yadav and another) under Sections 302, 376, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Talbehat, District Lalitpur, came to be registered.
17. Concerned Sessions Judge, vide framing of charge order dated 01.11.2021 has framed separate and distinct charges against the charge sheeted accused.
18. Mr. Gopal Swaroop Chaturvedi, the learned Senior counsel for applicant submits that in the F.I.R. giving rise to present application for bail, two persons namely (1) Ashok Yadav applicant herein and Smt. Rachana (wife of applicant) have been nominated as named accused. The criminality alleged against named accused is interlinked and intertwined and therefore incapable of separation or segregation. However, irrespective of above fact, co-accused Smt. Rachana has already been enlarged on bail by this Court, vide order dated 13.7.2022 in Criminal Misc. Bail Application No. 25315 of 2020 (Smt. Rachna Vs. State of U.P.). For ready reference, the same is reproduced herein under:-
Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Anshul Tiwari, learned counsel for the applicant and Sri Azad Singh, learned A.G.A. appearing for the State.
It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. It is next contended that applicant who is a lady has been falsely implicated in the present only because of the fact that she is the wife of the main accused namely Ashok Yadav and only for the purpose of putting pressure on the applicant she has been implicated in the present case. There is no direct or indirect evidence against her. It is further submitted that no incriminating article has been recovered from the possession or pointing out of the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that she is ready to cooperate with the process of law and shall faithfully make herself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 12.6.2020. It has been pointed out that the applicant has no criminal history.
Learned A.G.A. opposed the prayer for bail.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let the applicant Smt. Rachna involved in Case Crime No.67 of 2020, under Sections 323, 302, 506 I.P.C., Police Station Talbehat, District Lalitpur be released on bail on her furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions.
(i) The applicant shall file an undertaking to the effect that she 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her 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 her, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) 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 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.
In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
The trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of six months from the date of production of a certified copy of this order, if there is no legal impediment.
19. He thus submits that on account of above and also the fact that there is no such distinguishing feature so as to distinguish the case of present applicant from co-accused Smt. Rachana, therefore, in view of above and for the facts and reasons recorded in aforementioned bail order of co-accused, applicant is also liable to be enlarged on bail on the ground of parity.
20. It is next contended by learned senior counsel that the prosecution story as per the material on record is not consistent. The inference that can be drawn from the same is that the death of deceased can be homicidal i.e. she has been put to death by deliberate act of accused or suicidal i.e. committing death by herself.
21. To buttress his submission, learned senior counsel submits that as per the F.I.R. version (copy of which is on record at page 22 of the paper book), the deceased is alleged to have immolated herself. With reference to the statement of the victim recorded by Investigating Officer under Section 161 Cr. P. C. (at page 33 of the paper book), the prosecutrix has stated that her modesty was dislodged by applicant by removing her clothes. At this juncture, the wife of applicant namely Rachana came, who assaulted the prosecutrix and threatened the prosecutrix not to disclose about the incident to any one or else her brother and father shall be killed. The prosecutrix thereafter states that she went behind the house, poured kerosene upon herself and thereafter ran to the house of Ashok Yadav i.e. applicant herein. She was saved by Indrapal and the mother of Ashok Yadav. Thereafter, her father named accused Rachana and Indrapal took her to hospital in the four wheeler (Scorpio) of applicant Ashok. Referring to the first dying declaration of the prosecutrix/deceased recorded on 8.4.2020 (at page 53 of the paper book) he submits that prosecutrix in her dying declaration has resiled from her statement recorded under Section 161 Cr. P. C. The prosecutrix has now alleged that she went to the house of applicant around 6.30 p.m. Applicant met the prosecutrix and thereafter straight away removed her clothes and committed rape. She shouted then named accused Rachana came and she assaulted her. She further threatened to eliminate the family of prosecutrix. Thereafter, applicant poured kerosene on her and the other co-accused (chachi) alighted the match on account of which she got burned. He has then referred to the second dying declaration of the deceased recorded on 14.5.2020 (at page 39 of the paper book), wherein she has been inconsistent with reference to her previous dying declaration. Attention of the Court was also invited to the statement of the first informant namely Kripal Singh Yadav (father of the prosecutrix) (which is on record at page 44 of the paper book). The statement of the first informant clearly goes to show that the daughter of first informant immolated herself. Thereafter, the son of applicant informed the first informant about aforesaid. When he reached, he saw that his daughter was lying and covered with blanket.
22. On the basis of above, learned Senior counsel submits that in view of the aforesaid conflicting material, it cannot be concluded conclusively that the death of deceased is homicidal. As such, applicant is entitled to the benefit of doubt at this stage and hence, liable to be enlarged on bail.
23. Learned Senior Counsel has also invited the attention of the Court to the statement of Indrapal at page 99 of the paper book, Kripal Singh, at page 44 of the paper book and Smt. Gomti (grand mother of deceased) at page 90 of the paper book and on basis thereof he submits that the witnesses who have witnessed the occurrence also support the case of the applicant that the death of the deceased is suicidal and not homicidal.
24. Attention of the Court was also invited to the statements of Indrapal (which is on record at page 99), Kripal Singh Yadav (father of the prosecutrix) (which is on record at page 44 of the paper book) and Smt. Gomti (which is on record at page 90 of the paper book).
25. It is lastly contended that 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 jail since 28.5.2020. As such, he has undergone more than 2 years and 6 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. He further submits that since the charge sheet has already been submitted, the evidence sought to be relied upon by the prosecution against applicant stands crystallized. Furthermore, the trial has already commenced. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of above, he vehemently submits that applicant is liable to be enlarged on bail.
26. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Investigating Officer after completion of investigation of concerned case crime number submitted the charge sheet dated 23.6.2020 whereby applicant along with co-accused Smt. Rachana (wife of applicant) has been charge sheet under Sections 302, 376, 323, 506 IPC and Sections 3/4 POCSO Act, whereas co-accused Smt. Rachana has been charge sheeted under Sections 302, 323 and 506 IPC. The trial i.e. S.S.T. No. 237 of 2020 (State Vs. Ashok Yadav and others) has already commenced. Charges have been framed by Court below against charge sheeted accused i.e. the applicant and his wife. As such, interest of justice shall be served by directing the Court below to conclude the trial itself in a time bound manner instead of enlarging the applicant on bail.
27. According to learned A.G.A. no parity can be claimed by applicant with co-accused Smt. Rachana, who has been enlarged on bail, inasmuch as there is neither any reason assigned in the order for enlarging the applicant therein on bail, nor any distinction has been made to distinguish the case of applicant therein with present applicant. Even otherwise the co-accused Smt. Rachana is a lady and therefore by virtue of the provisions contained in proviso to Section 437 Cr. P. C., the co-accused was prima facie entitled to bail.
28. Learned A.G.A. further submits that the issue as to whether death of deceased is homicidal (deliberately put to death by an act of accused) or suicidal (death committed by deceased herself) is an issue which shall be appropriately dealt with at the time of trial. According to learned A.G.A. the aforesaid doubt raised by learned Senior counsel with reference to the documents occurring at pages 33, 39, 53 and 44 of the paper book is a fanciful doubt. One thing which is common in all the documents referred to above, is that the applicant is alleged to have dislodged the modesty of the prosecutrix. It is on account of above, that applicant has been charge sheeted under Sections 3/4 POCSO Act. Neither any pleading has been raised in the affidavit filed in support of the bail application nor any submission has been advanced by learned senior counsel to show that no offence under Sections 3/4 POCSO Act is made out against applicant.
29. In the submission of learned A.G.A., the prosecutrix was a young girl of tender age inasmuch as she was aged about 14 years approximately on the date of occurrence as the date of birth of prosecutrix is reported to be 8.7.2006. There is nothing on record to infer false/malicious prosecution of applicant. Moreover, there is no material on the basis of which the credibility of the prosecutrix could be doubted to infer that the prosecution story is false.
30. On the basis of aforesaid, learned A.G.A. strenuously urged that applicant does not deserve any indulgence by this Court.
31. Having heard the learned Senior counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that applicant is a named as well as charge sheeted accused, the prosecutrix in her statement under Section 161 Cr. P. C. as well as her first dying declaration has been consistent and categorical, there being no explanation for getting the second dying declaration of the deceased recorded, even when the first dying declaration of the deceased was recorded in accordance with law, the prosecutrix being a young girl of tender age i.e. 14 years approximately on the date of occurrence, there being nothing on record to infer false/malicious prosecution of applicant, but without expressing any opinion on the merits of the case, no case for grant of bail has been made out by applicant.
32. In view of above, application fails and is liable to be rejected.
33. It is, accordingly, rejected.
Order Date :-1.12.2022/HSM