Allowed

Shivam Singh v. State of U.P. and Another

Allahabad HC8 Feb 2022BAIL/45452/2021

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C. in a rape case under Sections 376 IPC and POCSO Act, the High Court of Allahabad allowed the bail. The court noted a delay of four months in filing the FIR, lack of corroboration regarding alleged neck injuries in medical reports, and the age of the prosecutrix being borderline major. Conditions regarding non-tampering and court attendance were impos

What did the court decide?

Applicant Shivam Singh released on bail with personal bond and two sureties subject to specific conditions including attending court dates and not harassing the victim.

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

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Court No. - 88

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45452 of 2021

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Applicant :- Shivam Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Alok Kumar Srivastava Counsel for Opposite Party :- G.A.,Chandra Narayan Mishra

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Hon'ble Samit Gopal,J.

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Heard Sri Alok Kumar Srivastava, learned counsel for the applicant, Sri Chandra Narayan Mishra, learned counsel for the first informant and Sri B.B. Upadhyay, 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 Shivam Singh, seeking enlargement on bail during trial in connection with Case Crime No. 121 of 2021, under Sections 376, 506 I.P.C. and Sections 3, 4 of the POCSO Act, registered at Police Station Rura, District Ramabai Nagar (Kanpur Dehat).

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The prosecution case as per the First Information Report lodged on 17.04.2021 by Mohit Kumar Pathak the father of the prosecutrix naming the applicant as the only accused alleging that his daughter is having her date of birth 01.01.2004 and is studying in Class-10th. Beside his rented house there is a shop of general merchant which is run by the applicant. On 17.12.2020 at 11:30 am when she was going to the field, the applicant who was hiding in the mustard field, pulled his daughter and he took her to the field of Arhar, threatened her and raped her. He also captured a video of his daughter in a naked position. He used to threaten her on the basis of the said video and continued to commit the sexual assault on her on various dates. When his daughter started avoiding him then he gave a mobile phone to his daughter and they used to talk. On 16.04.2021 he threatened her of murdering of her brother and he also caused injuries on her neck which are present on her body. The First Information Report was thus lodged.

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Learned counsel for the applicant argued that the allegations in the First Information Report are totally false and connected. It is further argued that the First Information Report has been lodged after unexplained delay of about four months from the date of the first sexual assault. It is argued that the medical examination report of the prosecutrix does not corroborate with the prosecution case. The doctor medically examined her, did

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not find any external injury present on her body and as such the allegations of injuries on her neck which was alleged to be caused by the applicant, is false. It is argued that the prosecutrix has in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. stated about rape being committed on her by the applicant and has corroborated the prosecution case but the same is with malafide intentions.

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Learned counsel has placed before the Court annexure 7 to the affidavit which is judgment and order dated 05.07.2016 in Sessions Trial No. 156 of 2010 (State of U.P. Vs. Indrapal Singh and others) and has argued that in the said trial Rajol Pathak was convicted. He is the first informant of the present case. It is argued that in the said trial Vishnu Pal Singh was examined as PW-3 who is the grandfather of the applicant and as such the applicant has been falsely implicated. Copy of the Parivar Register which is annexed as annexure 9 to the affidavit has been placed before the Court. It is argued that as such the implication of the applicant is false with malafide intentions. He further argued that the applicant has no criminal history as stated in para 18 of the affidavit and is in jail since 14.05.2021.

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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 First Information Report, statement under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix and there are allegations of his committing rape against him on the prosecutrix. It is argued that the prosecutrix has been opined to be aged about 16 years by the Chief Medical Officer, Kanpur Dehat and as such she is a minor.

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After having heard learned counsels for the parties and perusing the records, it is evident that the first incident of rape on the proseuctrix is of 17.12.2020. The First Information Report has been lodged on 17.04.2021 which is after about four months for the same. The version in the First Information Report that the prosecutrix has received injuries caused by the applicant which are present on her neck, does not get fortified from the medical examination. The First informant was convicted in a case in which the grandfather of the applicant was a witness against him. The Chief Medical Officer has opined the age of the prosecutrix as 16 years which after giving variation of two years she would be a major.

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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 Shivam Singh, 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 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 229A 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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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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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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Order Date :- 8.2.2022 M. ARIF

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(Samit Gopal, J.)

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Digitally signed by MOHAMMAD ARIF Date: 2022.02.10 10:00:37 IST Reason: Location: High Court of Judicature at Allahabad

Shivam Singh v. State of U.P. and Another

Case brief

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Shivam Singh v. State of U.P. and Another

Case brief

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