Allowed

Deepak @ Desh Deepak v. the State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Allahabad HC20 Jul 2023/150/2023

Case brief

AI extract

What is this about?

Criminal appeal against bail rejection in rape case involving SC/ST Act. Court reversed lower order, allowing bail based victim's inconsistent statements and substantial detention, imposing strict conditions and expediting trial.

What did the court decide?

Order set aside; appellant enlarged on bail with personal bond, sureties, and strict conditions regarding attendance, cooperation, and non-interference with witnesses; trial to be concluded within one

Deepak @ Desh Deepak Vs the State of U.P. Thru. Prin… — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:47884

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 150 of 2023

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Appellant :- Deepak @ Desh Deepak Respondent :- The State Of U.P. Thru. Prin. Secy. Home, Lko. And Another Counsel for Appellant :- Ajeet Kumar Singh,Reetu Singh Counsel for Respondent :- G.A.,Pradeep Kumar Tripathi

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Hon'ble Shamim Ahmed,J.

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Heard Shri Ajeet Kumar Singh, the learned counsel for the appellant as well as Shri Praduman Tripathi, Advocate holding brief of Sri Pradeep Kumar Tripathi, learned counsel for the opposite party No.2 and the learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

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The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 09.01.2023 passed by the court of learned Special Judge SC/ST Act, Sitapur in Bail Application No. 646 of 2022, arising out of Case Crime No. 608/2022, under Sections 376 I.P.C., Section 67 of I.T.Act and Section 3 (2) (v) S.C./S.T. Act, Police Station Hargaon, District Sitapur, whereby the bail application of the appellant has been rejected.

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Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case. The F.I.R. was lodged by the mother of the prosecutrix on the pressure created by the father. No such incident took place, as alleged by the prosecution.

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Learned counsel for the appellant further submits that the prosecutrix in her statement recorded under Sections 161 and 164 Cr.P.C. has stated that she was in love affairs with the appellant and she also made physical relation with her own sweet will, as the appellant has made false promise of marriage. Learned counsel for the appellant further submits that it was stated by the prosecutrix in her statement recorded under Section 164 Cr.P.C. that the appellant was adamant to break the marriage, if it is fixed somewhere else.

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Learned counsel for the appellant further submits that the victim in her statement recorded before the court below on 28.03.2023 has clearly stated that she has not made any allegation of making video clip by the appellant and it was stated on behalf of the pressure created by the police, even though whatsoever statement was given under Section 164 Cr.P.C., that was given on the instance of the police. She further submits that she was in love with the appellant and she made physical relation with him. She also stated that earlier her marriage, which was fixed with some other person was broken because there were some rumor in the village that the appellant and prosecutrix have relations and there is some video clip. She has also stated that she has not seen any video. In her statement recorded before the court below on 18.04.2023 she has clearly stated that she has refused for her internal medical examination, thus in absence of any medical examination, it cannot be said that the rape has been committed or any physical relation was made by the appellant with the prosecutrix. The prosecutrix is aged about 21 years, thus she is major. She knew her consequences very well. A copy of statement dated 28.03.2023 and 18.04.2023 are annexed as SA-2 to the supplementary affidavit filed on 04.07.2023.

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Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 05.11.2022, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

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For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated order dated 09.01.2023 passed by the court of learned Special Judge SC/ST Act, Sitapur in Bail Application No. 646 of 2022, arising out of Case Crime No. 608/2022, under Sections 376 I.P.C., Section 67 of I.T.Act and Section 3 (2) (v) S.C./S.T. Act, Police Station Hargaon, District Sitapur deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

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Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed

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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 appellant 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 and he is in jail since 05.11.2022 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 counsel for the informant submits that no such video is recovered and he also submits that the allegation is not correct and the marriage of the prosecutrix was fixed with some other person and it was assured by the learned counsel for the appellant that the appellant will not interfere in the marriage of the prosecutrix in future.

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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, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that victim in her statement recorded before the court below on 28.03.2023 has clearly stated that she has not made any allegation of video clip by the appellant and it was stated on behalf of the pressure created by the police, even though whatsoever statement was given under Section 164 Cr.P.C., that was given on the instance of the police. In her statement recorded before the court below on 18.04.2023 she has clearly stated that she has refused for her internal medical examination, thus in absence of any medical examination, it cannot be said that the rape has been committed or any physical relation was made by the appellant with the prosecutrix. The prosecutrix is aged about 21 years, thus she is major. She knew her consequences very well, further considering the fact that appellant is in jail since 05.11.2022 and has now by done a substantial period of detention 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

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SCC 22 , this Court is of the view that the learned court below has failed to appreciate the material available on record, both the impugned orders passed by the trial court are liable to be set aside.

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Accordingly, the appeal is allowed . Consequently, the order order dated 09.01.2023 passed by the court of learned Special Judge SC/ST Act, Sitapur in Bail Application No. 646 of 2022, arising out of Case Crime No. 608/2022, under Sections 376 I.P.C., Section 67 of I.T.Act and Section 3 (2) (v) S.C./S.T. Act, Police Station Hargaon, District Sitapur is hereby reversed and set aside .

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Let the appellant, Deepak @ Desh Deepak, be enlarged on bail in Case Crime No. 608/2022, under Sections 376 I.P.C., Section 67 of I.T.Act and Section 3 (2) (v) S.C./S.T. Act, Police Station Hargaon, District Sitapur with the following conditions:-

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(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

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(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

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(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

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(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

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(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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(iii) The appellant shall cooperate with investigation /trial.

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(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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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(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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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(vii) The appellant 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 appellant 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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The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

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Order Date :- 20.07.2023 Arvind

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Digitally signed by :- ARVIND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Deepak @ Desh Deepak v. the State of U.P. Thru. Prin. Secy. Home, Lko. and Another

Case brief

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Deepak @ Desh Deepak v. the State of U.P. Thru. Prin. Secy. Home, Lko. and Another

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