Gufran v. State of U.P. Through the Principal Secretary Home, Lucknow and Anr

Court No. - 15 Case :- CRIMINAL APPEAL No. - 152 of 2022 Appellant :- Gufran Respondent :- State Of U.P. Through The Principal Secretary Home, Lucknow And Anr. Counsel for Appellant :- Farooq Ayoob,Krishana Kumar Singh Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J. List has been revised and the case is being taken up in the revised call of the list. Heard Sri Krishana Kumar Singh, learned counsel for the appellant, Sri Hari Shanker Bajpai, learned A.G.A.-I for the State and perused the entire record. This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 10.01.2022 passed by learned Special Judge, S.C./S.T. Act, Barabanki in Bail Application No.2982 of 2021, Case Crime No.380 of 2021, under Sections 376, 504, 506 I.P.C. and Section 3(1)(Da), 3(1)(Dha), 3(2)(V) of S.C./S.T. Act, Police Station Ramnagar, District Barabanki, whereby the bail application of the appellant has been rejected. Learned A.G.A.-I for the State has already filed counter affidavit and in reply thereto rejoinder affidavit has also been filed, which are available on record. Vide order dated 28.01.2022, notice was issued to the opposite party no.2, however, till date no counter affidavit is filed on her behalf nor any counsel has put in appearance on her behalf. Thereafter, this Court vide order dated 28.10.2023 has granted last opportunity to the opposite party no.2 for filing counter affidavit. The order dated

28.10.2023 reads as under:- "1. Rejoinder affidavit filed today in the Court by learned Counsel for the appellant is taken on record. Learned Counsel for the appellant is directed to upload the same on DMS Portal.

¶2As per office reported dated 11.10.2023 notice has already been served upon opposite party No.2 but till date no counter affidavit has been filed on behalf of the opposite party No.2 nor any counsel is present today to represent the opposite party No.2.

¶3As a last opportunity, the opposite party No.2 is granted ten days' and no more further time to file counter affidavit. Three days' time thereafter shall be available to the appellant for filing rejoinder affidavit.

¶4Accordingly, list/put up this case on 16.11.2023." Today also when the case is taken up in the revised call, none appeared on behalf of the opposite party no.2. Since the learned counsel for the appellant presses urgency in the matter as the same pertains to bail, therefore, this Court has no other option but to proceed further in the matter. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. The instant F.I.R. is lodged only with intention to defame the image of the appellant as well as his entire family in the society. The instant F.I.R. has been lodged after moving an application under Section 156(3) Cr.P.C. after a long delay and no plausible explanation regarding delay has been given which shows malafide intention of the prosecutrix to falsely implicate the appellant. In fact the prosecutrix is aged about 21 years and was a consenting party. There is a relation between the parties and this fact has been admitted by the prosecutrix in her statements recorded under Section 161 and 164 Cr.P.C. as well as in the version of the F.I.R. Learned counsel for the appellant further submits that the allegations that appellant has made video of the prosecutrix during whatsapp call while she was naked, is also not proved by the Investigating Agency as nothing has been recovered from the mobile phone of the appellant nor there is any averment made in the counter affidavit in this regard except some statements of the villagers who stated that they have seen the video which was deleted. Learned counsel for the appellant submits that the villagers are interested witnesses they have not seen any video as the same was not recorded. Learned counsel for the appellant further submits that the parties were consenting in nature and the prosecutrix has herself admitted that due to fear and pressure created by the family members and police, she denied for the marriage with the appellant as she belongs to Schedule Caste and Schedule Tribe Community. In support of his arguments, learned counsel for the appellant has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608 and placed reliance upon paras 17 and 21, which are reproduced hereunder: "17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainants statement, she admitted that she was aware that there would be significant opposition from both the complainants and accuseds families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accuseds promise to marry the complainant was not of immediate relevance to the complainants decision to engage in sexual intercourse with the accused, which was motivated by other factors:[(2003) 4 SCC 46].

¶25There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married (Emphasis supplied).

¶21The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellants failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellants promise of marriage. Therefore, even if the facts set out in the complainants statements are accepted in totality, no offence under Section 375 of the IPC has occurred." Thus, learned counsel for the appellant submits that aforesaid judgment is applicable in the present case as the promise of marriage made by the appellant to the prosecutrix is in good faith as per the case set up by the complainant and it does not amount to rape as there is a consent of the prosecutrix. Learned counsel for the appellant further submits that all the allegations levelled by the prosecutrix against the appellant in her statements recorded under Sections 161 and 164 Cr.P.C. regarding sexual assaults several times for three years also got demolished after perusal of the medical report, wherein no internal or external injury was found on the person of the prosecutrix, no sign of recent sexual assault was found, presence of spermatozoa was negative and urine pregnancy test was also found to be negative, as such, allegation of rape levelled against the appellant are false. Learned counsel further submits that the appellant is in detention since

26.11.2021 and has already undergone a substantial period of detention. In support of his contention, learned counsel for the appellant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad." Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 26.11.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Learned A.G.A.-I opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the instant F.I.R. has been lodged after moving an application under Section 156(3) Cr.P.C. after a long delay and no plausible explanation regarding delay has been given which shows malafide intention of the prosecutrix to falsely implicate the appellant; the parties are consenting in nature and this fact has been admitted by the prosecutrix in her statements recorded under Section 161 and 164 Cr.P.C. as well as in the version of the F.I.R.; the allegations that appellant has made video of the prosecutrix during whatsapp call while she was naked, is also not proved by the Investigating Agency as nothing has been recovered from the mobile phone of the appellant nor there is any averment made in the counter affidavit in this regard; all the allegations levelled by the prosecutrix against the appellant in her statements recorded under Sections 161 and 164 Cr.P.C. regarding sexual assaults several times for three years also got demolished after perusal of the medical report, wherein no internal or external injury was found on the person of the prosecutrix, no sign of recent sexual assault was found, presence of spermatozoa was negative and urine pregnance test was also found to be negative and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, Pramod Suryabhan Pawar (Supra) and Kamal (Supra), this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 10.01.2022 passed by learned Special Judge, S.C./S.T. Act, Barabanki in Bail Application No.2982 of 2021, Case Crime No.380 of 2021, under Sections 376, 504, 506 I.P.C. and Section 3(1)(Da), 3(1)(Dha), 3(2)(V) of S.C./S.T. Act, Police Station Ramnagar, District Barabanki is hereby set aside and reversed. Let the appellant, Gufran be released on bail in the Case Crime No.380 of 2021, under Sections 376, 504, 506 I.P.C. and Section 3(1)(Da), 3(1)(Dha), 3(2)(V) of S.C./S.T. Act, Police Station Ramnagar, District Barabanki with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. Order Date :- 6.12.2023 Saurabh High Court of Judicature at Allahabad, Lucknow Bench