Allowed

Danish v. State of U.P. through the Principal Secretary Home

Allahabad HC27 Jul 2022/781/2022

Case brief

AI extract

What is this about?

In a criminal bail application, the High Court allowed bail to the applicant facing charges under IPC and POCSO. The court noted significant contradictions between the victim's statements and the lack of medical support for rape allegations, leading to the conclusion that bail can be granted.

What did the court decide?

Applicant released on bail on personal bond and two sureties conditioned to appear in court, not tamper with evidence, and cooperate with the trial.

Danish Vs State of U.P. through the… — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 13 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 781 of 2022 Applicant :- Danish Opposite Party :- State Of U.P. Through The Principal Secretary Home Counsel for Applicant :- Farooq Ayoob Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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This case is taken up in the revised call.

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None has appeared on behalf of the opposite party no. 2.

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As per Office Report dated 15.03.2022 notice issued to opposite party no.2 has been served personally, but neither anyone has put in appearance on behalf of opposite party No.2 nor any counter affidavit has been filed, therefore, this Court has no option except to hear and decide the bail application.

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Heard Ms. Farakshan Khatoon, Advocate holding brief of Sri Farooq Ayoob, learned counsel for the applicant and Sri Sudhir Upadhyay, learned A.G.A. for the State and perused the record.

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This application has been filed seeking the release of the applicant on bail in Case Crime No. 453/2021, under Sections 376D, 323, 506 I.P.C. and Section 5/6 POCSO Act, Police Station Dewa, District Barabanki.

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Learned counsel for the applicant submits that that applicant is innocent and he has been falsely implicated in the present case due to village party bandi. The false allegation was made in the F.I.R. against the applicant and other co-accused on the instance of the Village Pradhan,namely Shoban Singh Yadav.

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Learned counsel for the applicant further submits that the main dispute is with the Village Pradhan regarding the election of Gram Pradhan with the applicant and due to this reason, a free fight took place between the Village Pradhan and the applicant and his friend, namely Faisal Ansari.

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Learned counsel for the applicant further submits that aggrieved by the action and with malicious intention, the Village Pradhan Shoban Singh Yadav put the victim in front and lodged the present F.I.R. against the applicant and the co-accused Faisal Ansari and allegation of rape was levelled by the victim in her statement recorded under Section 164 Cr.P.C. and in the version of the F.I.R., whereas in her statement recorded under Section 161 Cr.P.C. has not levelled any allegation of rape and has admitted this fact that there was a free fight took place between the applicant and Village Pradhan Shoban Singh Yadav. The

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same fact was also admitted by the victim in her statement recorded under Section 164 Cr.P.C.

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Learned counsel for the applicant further submits that the Village Pradhan was the man behind the entire prosecution and the applicant has been falsely implicated in the present case. Actually the fact remains otherwise that a fight took place some day back, but due to the pressure created by the Village Pradhan, the victim has falsely named the applicant and coaccused Faisal Ansari in the present case.

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Learned counsel for the applicant further submits that the allegation of rape, as levelled by the victim in her statement recorded under Section 164 Cr.P.C. got demolished after perusal of the medical report as the doctor also stated that the victim was very non-cooperative and the doctor has took her vaginal smear slide, which also come negative and no spermatozoa seen. As per doctor, the age of the victim is 14 years, thus the prosecution case developed by the victim is false and fabricated. No such incident as alleged by the prosecution regarding rape happens and the applicant and other co-accused Faisal Ansari were falsely implicated 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 pointed out that the accused is not having any criminal history, which has been explained in para 18 of the affidavit filed in support of the bail application and the applicant is in jail since 14.12.2021 and has by now done a substantial period of incarceration, therefore, the bail application of the applicant may also be considered by this Court sympathetically and he should also be released on bail.

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Learned A.G.A. opposed the prayer for bail and submits that the applicant is involved in the heinous crime and his bail application may be rejected.

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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

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material to indicate the possibility of tampering with the evidence and considering the fact that there is vast contradiction in the statement of the victim recorded under Section 161 and 164 Cr.P.C. and the medical report does not support the allegation of rape, as levelled by the victim in her statement recorded under Section 164 Cr.P.C. and this aspect can also not be ignored that the Village Pradhan was beaten by the applicant and the co-accused, the Village Pradhan has brought forth the victim for lodging the F.I.R. 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- Danish involved in Case Crime No. 453/2021, under Sections 376D, 323, 506 I.P.C. and Section 5/6 POCSO Act, Police Station Dewa, 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 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

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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.

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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 merits of the case.

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Order Date :- 27.7.2022 Arvind

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Digitally signed by ARVIND KUMAR SRIVASTAVA Date: 2022.07.28 16:27:37 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Danish v. State of U.P. through the Principal Secretary Home

Case brief

What is this about?

What did the court decide?

Danish v. State of U.P. through the Principal Secretary Home

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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