Vijay Nath v. State of U.P.And 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41857 of 2023 Applicant :- Vijay Nath Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Dheeraj Kumar Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Yadvendra Yadav, Advocate, holding brief of Mr. Dheeraj Kumar Dwivedi, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This application for bail has been filed by applicant Vijay Nath seeking his enlargement on bail in Case Crime No. 74 of 2023, under Section 376 IPC and Sections 3/4 POCSO Act, P.S. Swaroop Nagar, District Kanpur Nagar during the pendency of trial. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon upon first informant opposite party 2. However, in spite of service of notice, no one has put in appearance on behalf of first informant opposite party 2 to oppose this application for bail. Record shows that in respect of an incident, which is alleged to have occurred on 10.5.2023, a delayed F.I.R. dated 11.5.2022 was lodged by first informant Munni Devi (maternal grandmother of the prosecutrix) and was registered as Case Crime No. 74 of 2023, under Section 376 IPC and Sections 3/4 POCSO Act, P.S. Swaroop Nagar, District Kanpur Nagar. In the aforesaid F.I.R., applicant Vijay Nath been nominated as solitary named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Vijay Nath deliberately and forcibly dislodged the modesty of the prosecutrix (granddaughter of first informant) namely X aged about 12 years. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned crime number in terms of Chapter XII Cr. P. C. He recorded the statement of the prosecutrix/first informant under Section 161 Cr. P. C., which is on record at page 41 of the paper book. Prosecutrix in her aforesaid statement has not only supported the F.I.R. but also detailed the manner of occurrence. Thereafter, the prosecutrix was requested for her internal medical examination. Prosecutrix in her statement before the Doctor has rejoined her previous statement under Section 161 Cr. P. C. However, the Doctor who medically examined the prosecutrix, did not find any injury on her body so as to denote commission of deliberate sexual assault upon the prosecutrix. Certain samples were taken from body of the prosecutrix for pathological examination. However, the result of the same is in negative. Subsequently, the statement of the prosecutrix was recorded under Section 164 Cr. P. C. which is on record at page 43 of the paper book. However, the prosecutrix in her aforesaid statement has departed from her previous statement recorded under Section 161 Cr. P. C. During course of investigation, it was discovered that the prosecutrix is illiterate. As per medical opinion, the prosecutrix is said to be aged about 16 years. On the basis of above and other material collected by the Investigating Officer, he came to the conclusion that complicity of present applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 23.6.2023, whereby applicant has been charge sheeted under Section 376 IPC and Sections 3/4 POCSO Act. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. Referring to the judgement of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74, the learned counsel for applicant submits that prosecution of an accused for an offence of rape and sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix. with reference to above it is urged by the learned counsel for applicant that the medical evidence does not support the ocular version of the occurrence. However, the prosecutrix in her statement under Section 161 Cr. P. C., before the Doctor and under Section 164 Cr. P. C. nor remained consistent, clear, categorical. To the contrary, the prosecutrix has been inconsistent and contradictory in the statement. It is thus urged that when the statements of the prosecutrix referred to above are examined as a whole and the test laid down in the judgement of the Supreme Court referred to above is applied to the same, it is apparent that the same are not only inconsistent, contradictory but also suffer from vice of embellishment which remain unexplained upto this stage. As such, they are not of impeccable character. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 12.5.2023. As such, he has undergone more than 5 months of incarceration. The police report in terms of Section 173

(2) Cr. P. C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet upto this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. He, therefore, submits that applicant is liable to be enlarged on bail. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that prosecutrix is a young girl aged about 16 years whose modesty has been deliberately dislodged by the applicant. Since applicant is a named/charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of record, evidence, complicity of the accused, accusation made, the nature and gravity of offence, coupled with the fact that though applicant is a named and charge sheeted accused, yet the Court finds that the prosecutrix in her statements under Sections 161 and 164 Cr. P. C. has not been clear, categorical and consistent with the regard to the prosecution story mentioned in the F.I.R., clean antecedents of the applicant, the period of incarceration undergone.the police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the medical evidence does not support the ocular version of the occurrence, the judgement of the Supreme Court in Phool Singh (supra) thereafter irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Vijay Nath 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 :- 16.10.2023 HSM High Court of Judicature at Allahabad