Allowed

Avinash Singh v. State of Up and Another

Allahabad HC29 Sept 2021CRLA/1041/2021

Case brief

AI extract

What is this about?

The High Court granted bail to the appellant in a charge of rape and offences under the SC/ST Act. Release was permitted due to contradictory victim statements and lack of medical proof of pregnancy, with strict undertakings regarding trial attendance and witness safety.

What did the court decide?

Appellant released on bail on personal bond and two sureties; impugned order dated 29.01.2021 quashed. Strict conditions imposed on trial conduct.

Avinash Singh Vs State of Up and Another — Bail and Remand | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL APPEAL No. - 1041 of 2021

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Appellant :- Avinash Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Dhirendra Pratap Singh,Bhriguram Ji,Sandip Kumar,Shashi Shankar Shukla,Shashi Shekhar Maurya Counsel for Respondent :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Counter affidavit filed on behalf of the State and rejoinder affidavit filed on behalf of the appellant, are taken on record.

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Heard Sri Shashi Shankar Shukla, learned counsel for the appellant, Sri Ajay Sharma, learned AGA and perused the record.

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The office report dated 01.07.2021 indicates that notice was served upon opposite party no. 2 but neither he has engaged any counsel nor filed any counter affidavit till date. Service of notice is deemed to be proper and sufficient. With the aid and help of learned A.G.A., the Court is proposing to decide the appeal on merit.

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By means of the appeal u/s 14 (A)(2) SC/ST Act, the appellant is challenging the order dated 29.01.2021 passed by Special Judge, SC/ST Act, Gorakhpur whereby the bail application of the appellant was rejected in Case Crime No. 803 of 2020, u/s 376D, 366, 313 IPC and section 3(2) (5) of SC/ST Act and 67A I.T. Act, P.S. Belghat, District Gorakhpur.

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Submission made by learned counsel for for the appellant that the present FIR was got registered by the victim herself against 7 named accused persons including the appellant leveling the allegation of section 376-D, 377, 366, 313, 323, 452, 427, 504, 506, 147, 120-B IPC and section 3(2) (5) of SC/ST Act on 28.11.2020 around 18:41 hours. As per the text of the FIR it is clear that the tirade of allegation is against the co-accused Rajan who is keeping an ill eye over the witness. The story narrated in the FIR are in the two fold (i) that on 03.02.2020 when she went to attend the call of nature, Rajan has ravished her and taken her indecent video and started blackmailing her to make it viral. (ii) Subsequently, on 16.08.2020 Rajan and Avinash Singh has called her on the pretext to erase the video and thereafter, taken her to Lucknow and from 17.08.2020 to 18.09.2020 both of them have virtually butchered her soul and psychic and ravished her time and again against her wish and desire. They have committed natural as well as unnatural offence against her and thereafter, make her pregnant. Avinash Singh, the appellant mixed some intoxicant in the tea and gave it to the victim so as to get her pregnancy terminated.

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I have perused the statements of the victim recorded u/s 161 and 164 Cr.P.C. and her medical report and finds that her both the statements are diagonally opposite. There is no reason or occasion to remain in the company of the appellant for full one months at Lucknow without any alarm. So far as the pregnancy is concerned, the medical report do not give any indication that she has ever conceive. In her medical examination, she has stated that she is a married woman but she has not disclosed the name of her husband. This by itself is quite puzzling. The C.M.O. opined that

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she is aged about 25 years old married woman.

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Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the appellant.

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The submissions made by learned counsel for the appellant, prima facie, quite appealing and convincing for the purpose of bail only.

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Taking into account the zig zag statements of the victim recorded u/s 161 and 164 Cr.P.C. as there is no parallel in between them, coupled with the fact, that there is a denial of the allegation of pregnancy in the medical report. So far as recovery of any obscene video or photograph are concerned, learned A.G.A. has unable to point out that during investigation any video or photograph was ever recovered by the police. Taking the statement of the victim recorded u/s 164 Cr.P.C. to be gospel therefore, there is no parallel in her 164 statement and her medical opinion by the doctor. It is highly risky to relying upon the statements of the victim recorded u/s 161 and 164 Cr.P.C. and has to be taken with pinch of salt. Taking into account the totality of circumstances and her grass hoppers statements that she is not given a stable story. It would be improper to keep a person behind the bar for unlimited period. Considering the submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the appellant has made out a fit case for bail.

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Let the appellant Avinash Singh , be released on bail in the aforesaid case crime number on furnishing a personal bond and 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:-

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(i) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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 APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A

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IPC.

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(iii) IN CASE, THE APPELLANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPELLANT 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 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 THE HIM/HER IN ACCORDANCE WITH LAW.

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(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.

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Keeping in view that though the complainant belongs to the S.C. community and as per arguments of learned counsel for the complainant that the accused appellant would create all sorts of impediments in the smooth trial. Besides this, after the release the accused appellant who belong to a higher caste may extend threat and pressurize the witnesses.

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All these complaints may be raised by the complainant before S.P. Gorakhpur who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of informant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members.

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With the observation the present stands allowed and the impugned order dated 29.01.2021 passed by Special Judge, SC/ST Act, Gorakhpur is hereby quashed.

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Order Date :- 29.9.2021 Nisha

Avinash Singh v. State of Up and Another

Case brief

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Avinash Singh v. State of Up and Another

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