Appeal against bail rejection allowed. Court found possibility of false implication due to delayed FIR and unexamined witnesses, despite serious nature of charges (rape), as consensuality remained to be fully washed aside.
Bail allowed on personal bond and two sureties of like amount subject to standard conditions including cooperation with trial.
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Court No. - 74
Case :- CRIMINAL APPEAL No. - 2929 of 2021 Appellant :- Ram Babu Patel Respondent :- State Of U.P. And Another Counsel for Appellant :- Swati Agrawal Srivastava Counsel for Respondent :- G.A.,Jagdamba Prasad
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
None is present on behalf of respondent no. 2.
This criminal appeal has been filed by the appellant Ram Babu Patel with a prayer to set aside the judgment and order dated 27.11.2020, passed by Special Judge, SC/ST Act, Allahabad, in Criminal Misc. Bail Application No. 4932 of 2020, arising out of Case Crime No. 485 of 2020, under Sections 457, 376, 506 I.P.C. and Section 3(2)V SC/ST Act, Police Station Karchhana, District Allahabad.
The first information version is that the on the date of incident at about 12:00 A.M. in the night, the accused-appellant after crossing over the wall of the house of the victim/informant, forcefully committed rape on her and threatened her with dire consequences. The first information report was lodged on 14.10.2020.
Learned counsel for the applicant has submitted that the accused-appellant has been falsely implicated in the present case. Submission is that the first information report has been lodged after a delay of four days for which there is no explanation in the first information report. Further submission is that when the victim was examined under Section 161 Cr.P.C., in that statement, she has stated that at about 01:00 A.M. in the mid night after the accused escaped from the spot,
her husband came and she informed about the incident to her husband but no first information report was lodged. In the same statement, she has stated that when the people in the village knew about the incident, only thereafter, the first information report was lodged against the accused-appellant. Similar kind of statement has been given by the victim in her statement recorded under Section 164 Cr.P.C. It has further been submitted that the description disclosed by the victim with regards to her place of residence shows that it is a hut shaded by tin shade and plastic and there appears to be no boundary wall in the hut. Therefore, it has been submitted that the version in the first information report that the accused-appellant has crossed over the boundary of the victim appears to be incorrect. It has also been submitted that it is not believable that despite she informed about the incident to her husband same night her husband said to her for keeping silence and the first information report has been lodged only when the people of the vicinity came to know about the incident. It has also been submitted that the facts and circumstances of the case gives an impression that it was a consensual act and when the people around the vicinity came to know, the first information report was lodged about it. Further submission is that there is all possibility of false implication by concocting the false information. The victim is aged about 28 years and is mother to two children also. It has also been pointed out that during medical, she has stated to the doctor that at the time of incident her son Krishna was also sleeping there and he got awakened and started crying and listening his cry, her elder sister-in-law ( Jethani ) came there but neither Krishna has been examined nor her elder sister-in-law ( Jethani ) has been examined in support of the first information report version. The submission of the learned counsel for the appellant is that the accused-appellant has no criminal history
and the court below has illegally rejected the bail application of the appellant. Hence, the impugned order is liable to be set aside and the accused-appellant is entitled to be enlarged on bail.
Learned A.G.A. has vehemently opposed the the prayer and has submitted that the victim has supported the version of the first information report and in both her statements recorded under Sections 161 and 164 Cr.P.C., she has stated that the appellant has committed rape on her at the relevant time. It has also been submitted that the delay in lodging the first information report has been explained by the victim who has stated that she was very apprehensive. Further submission is that the learned Special Judge has considered all the aspects of the matter and has rightly rejected the bail application of the appellant. Therefore, the appeal has got no force and is liable to be dismissed.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also the fact that the first information report has been lodged after four days from the date of incident and despite the fact that the victim informed about the incident to her husband in the same night, shows the possibility of false implication. The relevant witnesses whose names have been taken by the victim and who were stated to be present during the incident there, have not been examined by the I.O. and it also shows that there is some deviation in the narration of the whole fact from the side of informant. The facts and circumstances of the case is such that possibility of consensual relationship cannot be totally washed aside. Therefore, I find that the learned court below has erred in rejected the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order dated 27.11.2020, passed by Special Judge, SC/ST Act, Allahabad is hereby set aside.
Let the appellant namely Ram Babu Patel involved in aforesaid case be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellant is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Order Date :- 11.8.2021 sailesh
3 issues framed by the court
Whether the trial court erred in rejecting the bail application given the delay in lodging the FIR and the possibility of false implication.
Whether the facts and circumstances suggest a consensual relationship rather than rape, warranting bail.
Whether the Special Judge ILRC erred in rejecting the bail application filed under SC/ST Act.
Ram Babu Patel
State Of U.P.
Pradeep Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
