Allowed

Diwakar Kanaujiya @ Krishna v. State U.P.Thru. Prin. Secy.Home DEPTT.CIVIL.SECT.3.OTHERS

Allahabad HC26 Jul 2022/77/2022

Case brief

AI extract

What is this about?

The High Court granted bail to the applicant, Diwakar Kanaujiya, in a rape case under IPC 376 and POCSO. The court noted contradictions between the victim's statements recorded under Sections 161 and 164 CrPC and the lack of medical evidence supporting rape allegations, citing Article 21 and Dataram Singh.

What did the court decide?

Applicant released on bail on personal bond and two sureties conditioned to cooperate in trial and not tamper with evidence or commit further crimes.

Diwakar Kanaujiya @ Krishna Vs State… — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 77 of 2022

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Applicant :- Diwakar Kanaujiya @ Krishna Opposite Party :- State U.P.Thru. Prin. Secy.Home Deptt.Civil.Sect.3.Others Counsel for Applicant :- Gyanoday Shukla,Diwakar Shukla Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav

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Hon'ble Shamim Ahmed,J.

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List has been revised.

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Heard Shri Gyanoday Shukla, learned counsel for the applicant, Shri Sanjay Kumar Yadav, learned Counsel for the informant as well as Shri Anil Kumar, learned A.G.A. for the State and perused the record.

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The Court repeatedly asked Shri Sanjay Kumar Yadav to file counter affidavit in this case to which he replied that there is no instructions from his client to file any counter affidavit and he will argue this case in the absence of counter affidavit. The Court proceeded for final argument of the case.

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This application has been filed seeking the release of the applicant on bail in F.I.R./Case Crime No. 255 of 2021, under Section 376 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station - Jaidpur, District - Barabanki.

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Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case due to village rivalry. No such incident as alleged by the prosecution took place. The entire prosecution story has been lodged with the intention to defame the image of the applicant and his entire family in the society.

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Learned counsel for the applicant further submits that initially the first information report was lodged under Section 354 I.P.C. and Section 7/8 of the POCSO Act against the applicant. Thereafter, the statement of the victim was recorded under Section 161 Cr.P.C. in which she has not made any allegation of rape and the same version was repeated as of the F.I.R.

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Learned counsel for the applicant contends that in her statement under Section 161 Cr.P.C., the victim has not levelled any allegations of rape against the applicant whereas in her

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statement which was recorded under Section 164 Cr.P.C. and on the pressure created by the family members of the victim and police, she has taken somersault and slight allegation of rape was leveled against the applicant.

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Learned counsel for the applicant further submits that the allegations of rape committed by the applicant as alleged in her statement under Section 164 Cr.P.C. of the victim got demolished after perusal of the medical report wherein the doctor has opined that there is no internal or external injury found on the private part of the victim nor any dead or alive spermatozoa was seen and the radiological age of the victim was found to be of 14 years. Further, as per the medical examination from D.H./B.B.K., slide of vaginal smear is negative for spermatozoa and gonococci. Thus, in absence of any opinion by the Doctor regarding commission of rape, no case under Section 376 is made out against the applicant.

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Learned Counsel for the applicant further contends that the applicant and the victim are of the same village and due to village rivalry, the name of the applicant was falsely implicated in the said case. No such incident took place as alleged by the prosecution. Even though as per the medical examination, no case is made out against the applicant regarding commission of rape, thus the entire prosecution story is malicious. Learned Counsel for the applicant further contends that in fact the applicant has already solemnized marriage with the elder sister of the victim and due to this reason only the parents of the victim were against the applicant and falsely implicated the applicant in the present case.

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Several other submissions in order to demonstrate the falsity of the allegations made against the applicant 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. It has also been argued by learned counsel for the applicant that the accused is not having any criminal history as mentioned in the paragraph 27 of the affidavit filed in support of the bail application, he is in jail since 05.09.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. opposed the prayer for bail and submits that the applicant is involved in a heinous crime, therefore, his bail

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application needs to be rejected.

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Shri Sanjay Kumar Yadav, learned Counsel for the informant has not filed any counter affidavit, therefore, in absence of any counter affidavit, he is not denying the averments made in the affidavit filed in the bail application.

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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 in the absence of any convincing material to indicate the possibility of tampering with the evidence, there is a vast contradiction in the statement of the victim recorded under Section 161 and 164 Cr.P.C., as, she has not levelled any allegations of rape in her statement under Section 161 Cr.P.C. and the allegation of rape got demolished after perusal of the medical report, as the doctor in his opinion has opined that no alive or dead spermatozoa was seen nor there was any external or internal injury found on the private parts of the victim, her radiological age is found to be of 14 years 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 , 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 - Diwakar Kanaujiya @ Krishna involved in F.I.R./Case Crime No. 255 of 2021, under Section 376 I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station - Jaidpur, District - Barabanki be released 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

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commission of any crime after being released on bail.

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(5) In case, the applicant misuses the liberty of bail during trial, 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, 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 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.

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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. 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 merits of the case.

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Order Date :- 26.7.2022 Lokesh Kumar

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Digitally signed by LOKESH KUMAR Date: 2022.07.29 05:47:04 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Diwakar Kanaujiya @ Krishna v. State U.P.Thru. Prin. Secy.Home DEPTT.CIVIL.SECT.3.OTHERS

Case brief

What is this about?

What did the court decide?

Diwakar Kanaujiya @ Krishna v. State U.P.Thru. Prin. Secy.Home DEPTT.CIVIL.SECT.3.OTHERS

Case brief

What is this about?

What did the court decide?

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