Allowed

Pawan Kumar Gautam v. State of Up Thru. Prin. Secy. Home Lko. and Anr.

Allahabad HC14 Feb 2022/292/2022

Case brief

AI extract

What is this about?

This court allowed a bail application filed by Pawan Kumar Gautam in an FIR under Section 376 IPC. The court noted contradictions in the prosecutrix's statements under Sections 161 and 164 Cr.P.C., a non-opinionative medical report on sexual assault, and the absence of material indicating tampering with evidence.

What did the court decide?

The applicant be enlarged on bail on executing a personal bond and two sureties subject to conditions regarding appearance, non-tampering with evidence, and cooperation in trial.

Pawan Kumar Gautam Vs State of Up Thru. Prin. Secy. Home… — Bail and Remand | Allahabad HC (2022)

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Court No. - 34

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 292 of 2022 Applicant :- Pawan Kumar Gautam Opposite Party :- State Of Up Thru. Prin. Secy. Home Lko. And Anr. Counsel for Applicant :- Rashmi Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Pleadings have been exchanged between the parties.

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Heard Mrs. Rashmi Pandey, the learned counsel for the applicant, Shri Rao Narendra Singh, the learned A.G.A.-I for the State and perused the record.

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The applicant, Pawan Kumar Gautam , has moved the present bail application seeking bail in F.I.R. No. 42 of 2020, under Section 376 I.P.C., Police Station Kothi, District Barabanki.

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Learned counsel for the applicant submits that the applicant has falsely been implicated in the case. As per the prosecution case as alleged by the informant-opposite party No. 2, that the applicant had developed physical relations on the false promise of marriage for two years and forcefully caused termination of two months pregnancy. It has also been alleged in the F.I.R. that the prosecutrix was beaten by the relatives of applicant in the Tilak ceremony of the applicant on 05.02.2022.

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Learned counsel for the applicant further submits that there is no proof of the allegation made by the prosecutrix regarding forceful termination of her pregnancy by the applicant. As a matter of fact the applicant is innocent and he has committed no offence as alleged by the prosecution or any other offence whatsoever.

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Learned counsel for the applicant further submits that the prosecutrix is a major and married woman, aged about 24 years, who eloped from her matrimonial house on her own sweat will and remarried with one Vineet Kumar and also has an issue of aged two and half year from her husband which is admitted in the F.I.R. The applicant who is a police constable and at the time of alleged incident, was posted at District Lakhimpur Kheri. Somehow he visited to the informant's house and he usually furnished some financial help to the prosecutrix and her husband as the husband developed friendship with the applicant. Due to some financial disputes arose between the applicant and the husband of prosecutrix, the prosecutrix and her husband started threatening the applicant to implicate him in false case if the applicant does not fulfill their financial demand, which clearly indicates that the present F.I.R. has been

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lodged by the complainant/ prosecutrix against the applicant with malafide intention and ulterior motive and created a false and fabricated narration of story with the help of her husband for the sake of illicit demand of five lacs rupees from the applicant.

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Learned counsel for the applicant further submits that the allegations made in the F.I.R. is totally incorrect. There are some private disputes between the applicant and the husband of the prosecutrix. The present F.I.R. has been lodged against the applicant only in order to harass him. It is a case of false implication as per the statement recorded under Section 161 Cr.P.C. of the prosecutrix, wherein she has herself stated that she is a consenting party and developed relations with the applicant.

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Learned counsel for the applicant further submits that as per her own averments of the prosecutrix the applicant was exploiting her for the last two years, but no complain or any F.IR. has been lodged by the prosecutrix aginst the applicant for that period. As per the statement recorded under Section 164 Cr.P.C. the prosecutrix has denied her earlier statement recorded under Section 161 Cr.P.C. and she has taken a somersault wherein she has stated that she was consenting party. In the statement recorded under Section 164 Cr.P.C. she has alleged that the applicant has exploited her sexually for the last two years and has caused her pregnancy aborted. Such allegation could not be established during the course of investigation by the prosecutrix herself, therefore, the Investigating Officer did not submit the charge sheet under such section and the applicant was only chargesheeted for the offence under Section 376 I.P.C.

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Learned counsel for the applicant further drawn attention of the Court towards the medical examination conducted by the Dr. Narendra Singh Yadav at C.H.C. Barabanki. In the medical report it has been clearly stated that no definite opinion can be given about sexual assault of Vidya Devi (prosecutrix). As per the vaginal smear report done at District Women Hospital, Barabanki on 17.02.2020 no spermatozoa or gonococei was seen, which establish that the allegation of rape is totally false. The report of the urine pregnancy test of the prosecutrix also comes negative.

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Learned counsel for the applicant further submits that the applicant has falsely been implicated in the case. No case under Section 376 I.P.C. is made out against the applicant, therefore, the applicant is entitled to be enlarged on bail by this Court sympathetically.

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Several other submissions regarding legality and illegality of the allegations made in the F.I.R. 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 applicant 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. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that the applicant is not having any criminal history and he is in jail since 20.10.2021 and that in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by learned counsel for the applicant.

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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 the absence of any convincing material to indicate the possibility of tampering with the evidence, and also considering the contradictions in the averments made in the F.I.R. and also in the statements of prosecutrix recorded under Sections 161 and 164 Cr.P.C. wherein she has changed her version, and also considering the medical report wherein doctor has opined that no definite opinion about sexual assault could be given and also 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 U.P. and another , reported in (2018) 3 SCC 22 , this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant, Pawan Kumar Gautam , involved in F.I.R. No. 42 of 2020, under Section 376 I.P.C., Police Station Kothi, District Barabanki, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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(5) In case, the applicant misuses the liberty of bail and in order to secure his 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 him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(6) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

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(8) The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

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Order Date :- 14.2.2022 Mustaqeem

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Digitally signed by MOHD MUSTAQEEM KHAN Date: 2022.02.15 15:01:09 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Pawan Kumar Gautam v. State of Up Thru. Prin. Secy. Home Lko. and Anr.

Case brief

What is this about?

What did the court decide?

Pawan Kumar Gautam v. State of Up Thru. Prin. Secy. Home Lko. and Anr.

Case brief

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What did the court decide?

What the court decided

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