Allowed

Bhakalu @ Laxmi Prasad v. State of U.P.and 3 Others

Allahabad HC13 Jul 2023BAIL/24456/2023

Case brief

AI extract

What is this about?

This criminal bail application involved an applicant accused of rape and kidnapping. The court noted inconsistencies in the prosecutrix's statements and the absence of initial medical evidence. Finding no material necessity for continued custodial arrest, the bail application was allowed with specific conditions regarding court attendance.

What did the court decide?

Bail allowed on furnish of personal bond and two sureties with strict conditions regarding court appearance and preventing misuse of liberty.

Bhakalu @ Laxmi Prasad Vs State of U.P.and… — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:139224

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24456 of 2023

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Applicant :- Bhakalu @ Laxmi Prasad Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Kali Charan Yadav,Jitendra Partap Singh Counsel for Opposite Party :- G.A.,Sheetala Prasad Pandey

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Hon'ble Rajeev Misra,J.

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Heard Mr. K.C. Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sheetala Prasad Pandey, the learned counsel for first informant.

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This application for bail has been filed by applicant Bhakalu @ Laxmi Prasad, seeking his enlargement on bail in Case Crime No. 45 of 2023, Section 34, 323 and 376(3), 506 IPC and Section 3/4 POCSO Act, Police Station- Sonaha, Agra, District Basti during the pendency of trial.

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Record shows that in respect of an incident which is alleged to have occurred on 7.2.2023, a delayed F.I.R. dated 16.2.2023 was lodged by first informant Gyan Das and was registered as Case Crime No. 45 of 2023, Section 34, 323 and 376(3), 506 IPC and Section 3/4 POCSO Act, Police Station- Sonaha, Agra, District Basti. In the aforesaid F.I.R. Bhakalu (the applicant herein) and Vikas 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 named accused Bhakalu @ Laxmi Prasad came to the house of first informant on 6.2.2023 at around 9:00 am and is alleged to have stated that he wants to marry the daughter of first informant and in case, said request is not adhered to, he will abduct his daughter and, parents of the prosecutrix will be put to death by crushing them with his truck. The applicant is alleged to be a truck driver. On the next date, first informant along with his wife went to the house of applicant to settle the issue. The F.I.R. further records that on the said date, a dispute took place between the parties, and first informant was badly beaten by accused i.e. applicant herein.

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After above mentioned First Information Report was lodged, Investigating Officer proceeded with statutory investigation of

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aforesaid case crime number in terms of Chapter XII Cr.P.C. During course of investigation, he examined the daughter of first informant (prosecutrix) under section 161 Cr.P.C. The same is on record at page 27 of the paper book. The prosecutrix in her aforesaid statement has given a totally different story which is alien to the prosecution story as unfolded in the F.I.R. It is apposite to mention here that prosecutrix herself stated that her modesty was dislodged by applicant and this fact was disclosed by prosecutrix to her mother and thereafter the F.I.R. was got registered. However, it is pertinent to mention here that allegations with regard to commission of rape is conspicous by its absence in the F.I.R. Thereafter the prosecutrix was requested for her medical examinaion, which was refused by her. Ultimately, the statement of the prosecutrix was recorded under section 161 Cr.P.C. wherein the prosecutrix has improved upon her earlier statement under section 161 Cr.P.C. and has come up with an entirely new story.

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Investigating Officer, during course of investigation, examined the principal of the institution, where the prosecutrix had studied. As per the certificate given by the Principal of the institution, the date of birth of the prosecutrix is 10.5.2009. The occurrence in question occurred on 7.2.2023. As such, on the date of occurrence, the prosecutrix was aged about 14 years and 11 days. Investigating Officer further examined the first informant and other witnesses under section 161 Cr.P.C. who have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. He accordingly submitted the charge sheet dated 6.4.2023.

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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 liable to be enlarged on bail. Referring to the F.I.R., he submits that though the F.I.R. is not the encyclopedia of the prosecution case but it must reflect the basic prosecution case. When the statements of the prosecutrix referred to above, are examined in the light of above, it is explicit that prosecutrix has improved upon the prosecution story as unfolded in the F.I.R. At this stage, the statement of the prosecutrix recorded under section 161 Cr.P.C. is worth referring too. As per the said statement, the prosecutrix stated that her modesty was dislodged, which fact was disclosed by her to her mother, the F.I.R was lodged but there is no averment in the F.I.R. with regard to dislodging the modesty of the prosecutrix by applicant. The statement of the prosecutrix is over and above, the

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basic prosecution case as unfolded in the F.I.R. It is next contended that the statement of the prosecutrix under section 164 Cr.P.C. is totally different from the statement recorded under Section 161 Cr.P.C.

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Learned counsel for applicant has then invited the attention of Court to the judgement of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74. On the basis of above, he submits that conviction of an accused for an offence of rape and sexual assault can be maintained, even in the absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a circumstance the statement of the prosecutrix must be clear, categorical and consistent. When the aforesaid test is applied to the present case and the statements of the prosecutrix referred to above, are taken as a whole, then the same are not only inconsistent but also contradictory. As such, they do not fall in the category of impeccable evidence.

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Applicant is in jail since 26.2.2023. As such, he has undergone more than 4 and 1/2 of months of incarceration. The police report under section 173 (2) has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, there is no such material warranting custodial arrest of applicant during course of trial. To buttress his submission he has relied upon the judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373 (Para 5). Even otherwise the applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. It is thus urged that applicant 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 and the learned counsel for first informant have opposed the present application for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Attention of the Court was invited to the statements of the prosecutrix, recorded under section 161/164 Cr.P.C. and on basis of above, it is sought to be urged that the prosecutrix has clearly and categorically implicated the applicant in the crime in question. The prosecutrix has detailed the manner of occurrence also. The prosecutrix is aged about 14 years and 11 days, whose modesty has been deliberately and forcibly dislodged by applicant. As such, no indulgence be granted by this Court in favour of applicant. However, they could not dislodge the factual and legal

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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 perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made and considering the submission urged by learned counsel for applicant as noted herein above, which could not be dislodged by learned A.G.A. as well as the counsel for first informant, nor the learned A.GA. with reference to the record point out any such circumstances, necessitating the custodial arrest of applicant, applicant has made out a case for bail.

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Accordingly, the bail application is Allowed.

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Let the applicant Bhakalu @ Laxmi Prasad, 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) 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 THE HIM/HER IN

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ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 13.7.2023 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Bhakalu @ Laxmi Prasad v. State of U.P.and 3 Others

Case brief

What is this about?

What did the court decide?

Bhakalu @ Laxmi Prasad v. State of U.P.and 3 Others

Case brief

What is this about?

What did the court decide?

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