Allowed

Vivek v. State of U.P.

Allahabad HC10 Jul 2023BAIL/20159/2023

Case brief

AI extract

What is this about?

In a bail application under Sections 354, 323, and 376 IPC arising from a matrimonial dispute, the High Court considered the consistency of the prosecutrix's statements. Noting unexplained departures in her Section 164 statement but highlighting the applicant's clean antecedents and existing custody, the court allowed bail.

What did the court decide?

Application allowed; applicant released on bail on personal bond and two sureties under conditions to prevent tampering, ensure court attendance, and refrain from unlawful activities.

Vivek Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:135602

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20159 of 2023

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Applicant :- Vivek Opposite Party :- State of U.P. Counsel for Applicant :- Amarendra Mani,Saurabh Kumar Pandey Counsel for Opposite Party :- G.A.,Raghvendra

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Hon'ble Rajeev Misra,J.

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Heard Mr. Saurabh Kumar Pandey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Radhvendra, the learned counsel representing first informant.

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Perused the record.

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Instant application for bail has been filed by applicant-Vivek seeking his enlargement on bail in Case Crime No. 79 of 2022 under Sections 354, 323, 376 I.P.C., Police Station-Raja Ka Rampur, District-Etah, during the pendency of trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 28.09.2022, a delayed F.I.R. dated 30.09.2022 was lodged by first informant Smt. Sarita (prosecutrix)/bhabhi of applicant) and was registered as Case Crime No. 79 of 2022 under Sections 354, 323, 376 I.P.C., Police Station-Raja Ka Rampur, District-Etah. In the aforesaid F.I.R. three persons namely Narayandas (father-in-law), Neksha (mother-in-law) and Vivek (applicant herein) (devar of prosecutrix) have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R is to the effect that the marriage of the prosecutrix was solemnized with Jay Singh i.e. the brother of applicant. The husband of

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prosecutrix resides outside. On the fateful day, the applicant is alleged to have dislodged the modesty of the prosecutrix whereas father-in-law of the prosecutrix is alleged to have assaulted her.

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After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, he examined first informant under Section 161 Cr.P.C, copy of which is on record at page 26 of the paper book. In the aforesaid statement, the prosecutrix has supported the F.I.R. but has not detailed the manner of occurrence. Prosecutrix was thereafter referred to Community Health Centre, Aliganj (Etah) and was medically examined. The copy of the Medico Legal Examination Report is on record at page 24 of the paper book. Eight injuries were found on the body of prosecutrix, which are mostly contusion, abrasion, scratch and swelling.

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Thereafter prosecutrix was medically examined internally in respect of an offence under Section 376 I.P.C. The Doctor, who examined the prosecutrix did not find any such injury on the body of the prosecutrix so as to denote the commission of sexual assault. Certain samples were taken from the body of the prosecutrix. However, the result of the same are negative as per the submission of the learned A.G.A. Thereafter the statement of the prosecutrix was recorded under Section 164 Cr.P.C. which is on record at page 28 of the paper book. The prosecutrix in her aforesaid statement has departed from her earlier statement under Section 161 Cr.P.C. and has now alleged that rape was committed upon her by applicant. During course of investigation, Investigating Officer examined various witnesses, under Section 161 Cr.P.C., who have substantially

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supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. Moreover, offence under Section 376 I.P.C. is also made out against applicant. Accordingly, Investigating Officer submitted the charge sheet dated 24.04.203 whereby applicant has been charge-sheted under Sections 354, 323 and 376 I.PC.

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Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused but he is innocent. Applicant has been falsely implicated in aforementioned case crime number. Dispute between the parties is purely a matrimonial dispute which has been dragged into criminal litigation. The first informant/prosecutrix is the Bhabhi of the applicant. He has then invited the attention of the Court to the statement of prosecutrix recorded under Section 161 Cr.P.C., the statement before Doctor and the statement under Section 164 Cr.P.C. Drawing a parallel between the three, learned counsel for applicant submits that allegation with regard to commission of rape by applicant has surfaced for the first time in the statement of prosecutrix under Section 164 Cr.P.C. He then contends that even though an F.I.R. is not the encyclopaedia of the prosecution case, but it must disclose the basic prosecution case. The statement of the prosecutrix recorded under Section 164 Cr.P.C. is beyond the basic prosecution case. As such, the same suffers from the vice of embellishment, which remains unexplained. Referring to the judgement of apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74 he submits that conviction of an accused can be maintained for an offence of rape or sexual assault even in absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a circumstance,

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the statement of the prosecutrix must be clear, categorical and consistent.

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On the above premise, the learned counsel for applicant submits that when the statements of the prosecutrix as recorded under Section 161 Cr.P.C., statement before Doctor and statement under Section 164 Cr.P.C. are taken as a whole then they do not fall in the category of impeccable evidence. As such, no conviction of the applicant can be maintained on the basis of aforesaid statements. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 13.04.2023. As such he has undergone approximately three months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Referring to the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the learned counsel for applicant submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named as well as charge-sheet accused, therefore he does not deserve any indulgence by this Court. They further submit that the prosecutrix has categorically supported the F.I.R. in her statements under Sections 161/164 Cr.P.C. Offence complained of is not private in nature but a crime against society. However

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they Could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that the prosecutrix in her statement under Section 164 Cr.P.C. has departed form her earlier statement under Section 161 Cr.P.C., no explanation has been offered with regard to the embellishment made by the prosecutrix in her statement under Section 164 Cr.P.C. the judgement of apex court in Phool Singh (Supra) referred to above, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, no such circumstance could be pointed out by the learned A.G.A. necessitating the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the judgement of Supreme Court in Sumit Subhashchandra Gangwal (supra), the period of incarceration undergone by applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly, present application for bail is allowed .

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Let the applicant- Vivek involved in aforesaid case crime number be released on bail on his 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) Applicant will not tamper with prosecution evidence.

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(ii) 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) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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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 of applicant and send him to prison

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Order Date :- 10.7.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Vivek v. State of U.P.

Case brief

What is this about?

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Vivek v. State of U.P.

Case brief

What is this about?

What did the court decide?

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