Allowed

Dharmendra v. State of U.P.

Allahabad HC27 Sept 2022BAIL/16866/2022

Case brief

AI extract

What is this about?

Criminal Misc. Bail Application allowed wherein applicant Dharmendra sought bail in connection with offences of attempted murder, rape, and harsh assault. Court noted inconsistencies in prosecution version and lack of clear medical opinion on injury nature, granting bail subject to stringent conditions including attendance and non-tampering.

What did the court decide?

Released on bail furnishing personal bond and two sureties with conditions regarding court attendance, non-tampering, and specific appearances for case stages.

Dharmendra Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16866 of 2022

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Applicant :- Dharmendra Opposite Party :- State of U.P. Counsel for Applicant :- Manoj Srivastava Counsel for Opposite Party :- G.A.,Sanjay Singh

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Hon'ble Samit Gopal,J.

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Heard Sri Manoj Srivastava, learned counsel for the applicant, Sri Sanjay Singh, learned counsel for the first informant, Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Dharmendra, seeking enlargement on bail during trial in connection with Case Crime No.85 of 2021, under Sections 307, 376 and 511 IPC, registered at Police Station Kaundhiyara, District Allahabad.

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This is the second bail application. The first bail application of the applicant was dismissed for non-prosecution vide order dated 4.4.2022 passed by this Court passed in Criminal Misc. Bail Application No.55182 of 2021.

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The FIR of the present case was lodged by Prem Chand Kushwaha on 3.4.2021 at 17.04 hours stating therein that on 3.4.2021 at about 1.30 a.m., while his mother who had grown the vegetables in the fields was sleeping in her fields for the safety of said vegetables, the accused Dharmendra @ Nankau came there and with an intention to kill her, assaulted her with danda and blade and as soon as he reached there, accused fled away. Later on his mother was admitted in the hospital at Prayagraj in a serious condition. The FIR was thus lodged against Dharmendra, the present applicant only.

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Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that the victim being the mother of the first informant was medically examined on 3.4.2021 at 5.50 a.m. and was found to have received two incised wounds and two lacerated wounds. The doctor opined the injuries to be fresh and suspected them to be caused by hard and sharp object which was in case of physical assault, primary management was done. She was referred to ESW RSO for further management. It is further argued that the first informant in his statement under Section 161 Cr.P.C. has reiterated the version of the FIR. Subsequently the victim was examined under Section 161 Cr.P.C. where she reiterates the version of the FIR but further added that the applicant tried to commit rape upon her. Later on in the statement under Section 164 Cr.P.C. of the victim, she reiterates the version of the FIR but further therein also added that the applicant tried to commit an act to disrepute her on which she opposed and then he tried to press her neck. She also stated that the applicant assaulted her with the blade and lathi due to which she received injury and became unconscious. There were two persons being Dharmendra and Rajendra and both of them assaulted her after which she

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became unconscious, after which they ran away. There is no consistency in the prosecution case. The accused Rajendra Maurya whose name has surfaced in the statement of the victim recorded under Section 164 Cr.P.C., has been granted bail by coordinate Bench of this Court vide order dated 30.11.2021 passed in Criminal Misc. Bail Application No.33772 of 2021, copy of the same is annexed as Annexure No.6 to the affidavit filed in support of bail application. It is further argued that the doctor examined the victim but has not given any opinion regarding nature of injuries and there is no further medical examination report or supplementary report to show the nature of injuries received by her and as such the injuries were simple in nature. It has also been pointed out that the applicant is not having any criminal history as stated in para 17 of the affidavit. The applicant is in jail since 5.4.2021.

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Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the FIR, in the statement of the first informant recorded under Section 161 Cr.P.C and in the statement of the victim recorded under Sections 161 Cr.P.C and 164 Cr.P.C and has been assigned the role of making an attempt to commit rape and also assaulting the victim, as such there is an active role of the applicant in the incident, as such the prayer for bail be rejected.

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After hearing the counsel for the parties and perusing the record, it is evident that in the FIR applicant is stated to have assaulted the victim/mother of the first informant. Subsequently the victim in her statement under Section 161 Cr.P.C. states that the applicant tried to commit rape upon her and assaulted but thereafter in her statement recorded under Section 164 Cr.P.C. added one more thing that accused being Rajendra and applicant assaulted her and the applicant tried to commit rape. The prosecution case is not consistent which has continuously improved. There is no opinion by the doctor regarding nature of injuries.

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Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

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Let the applicant-Dharmendra, 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present

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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.

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(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if 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 I.P.C.

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(v) The applicant 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 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 and the trial court may proceed against him under Section 229-A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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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 applicant to prison.

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The bail application is allowed.

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(Samit Gopal, J.)

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Order Date :- 27.9.2022 Gaurav

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Digitally signed by GAURAV KULSHRESTHA Date: 2022.09.28 10:16:51 IST Reason: Location: High Court of Judicature at Allahabad

Dharmendra v. State of U.P.

Case brief

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Dharmendra v. State of U.P.

Case brief

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