Allowed

Dharmendra Kumar and Another v. State of U.P. and Another

Allahabad HC10 Aug 2023BAIL/9478/2020

Case brief

AI extract

What is this about?

The High Court allowed bail to applicants detained for over three years in a gang-rape case under POCSO. The court noted the long delay, initial exoneration, and changing victim statements, directing the trial court to conclude proceedings within eight months.

What did the court decide?

Release of applicants on bail with personal bond and two sureties, each with conditions to appear in court and not tamper with evidence.

Dharmendra Kumar and Another Vs State of… — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:162536

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9478 of 2020

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Applicant :- Dharmendra Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pramod Kumar Srivastava,Bhoodev Yadav,Kumar Ankit Srivastava,Shivam Yadav Counsel for Opposite Party :- G.A.,Sanjeev Kumar Asthana

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Hon'ble Sameer Jain,J.

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Sri Shivam Yadav, learned counsel for the applicants, Sri Sanjeev Kumar Asthana, learned counsel for the informant and Sri Manah Chaurasiya, learned counsel for the informant are present.

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Sri Shivam Yadav, learned counsel for the applicants submitted that although, the instant bail application is connected with Criminal Misc. Bail Applications No. 7215 of 2019 and 18437 of 2020 and he is ready to argue the instant bail application along with Criminal Misc. Bail Application No. 18437 of 2020 but he is not the counsel in Criminal Misc. Bail Application No. 7215 of 2019 and it appears that learned counsel of co-accused Suraj is not interested to argue the matter, therefore, these two bail applications may be heard and disposed of.

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In view of the above, today, bail application of co-accused Ram Chandra (Bail Application No. 18437 of 2020) along with instant bail application is being heard.

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Heard Sri Shivam Yadav, learned counsel for the applicants, Sri Sanjeev Kumar Asthana, learned counsel for the informant and Sri Manav Chaurasiya, learned AGA for the State-respondent.

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The instant application has been filed seeking release of the applicants on bail in Case Crime No. 259 of 2018, under Sections 376-D, 504, 506 IPC & 5/6 POCSO Act, Police Station- Meja, District- Prayagraj, during pendency of the trial in the court below.

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FIR of the present case was lodged against unknown person and according to the FIR, daughter of the informant aged about 14 years has missed somewhere from her house in the night of

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24.05.2018 while she was sleeping outside of her home.

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Learned counsel for the applicants submitted that FIR of the present case was lodged against unknown persons and when the victim i.e. prosecutrix of the case was recovered and her statement was recorded under Section 161 Cr.P.C. then she also did not make any allegation against anyone and categorically stated that due to bad behaviour of her parents she on 24.05.2018 had left her home and when on 01.06.2018 she was returning back then police apprehended her.

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He further submitted that when subsequently her statement under Section 164 Cr.P.C. was recorded then she changed her earlier version and stated that on the letter of co-accused Suraj, she arrived at the place, which was disclosed to her by Suraj in the letter and thereafter co-accused Ram Chandra forcibly took her to the house of his uncle and thereafter applicants along with Suraj and co-accused Ram Chandra committed rape with her. He further submitted that this fact clearly suggests that prosecutrix i.e. victim of the case is not a reliable witness and she developed a new story in her statement recorded under Section 164 Cr.P.C. under the pressure of her parents.

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He further submitted that during investigation the involvement of the applicants and co-accused Ram Chandra were found false and therefore, on 07.07.2018 a report was filed by the Investigating Officer that further investigation is continued with respect to co-accused Suraj but after that investigation was transferred and thereafter new Investigating Officer implicated the applicants in the present matter. He further submitted that applicants were not absconder and they appeared after about one and half years of the incident as initially their involvement was found false by the Investigating Officer and thereafter they were continuously availing the legal remedy available to them.

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He further submitted that applicants are not having any criminal history and they are in jail in the present matter since 02.12.2019 i.e. for more than three and half years, therefore, they may be released on bail.

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Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that applicants are absconder and they any how could only be arrested after about one and half years when process under Section 82/83 Cr.P.C. were issued against them.

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Learned counsel for the informant further pointed out that although, initially a report was filed in favour of the applicants on 07.07.2018 but during further investigation in the month of October, 2018 they have again became accused and thereafter they approached before this Court for their arrest stay and however their writ was dismissed by this Court but in spite of that they did not appear either before the Investigating Officer or court concerned and they could only be arrested in the month of December, 2019 i.e. after more than a year.

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However, learned counsel for the informant and learned AGA could not dispute the fact that applicants are in jail since December, 2019 i.e. for more than three and half years and till date trial of the case could not be concluded and victim i.e. prosecutrix of the case in her statement recorded under Section 161 Cr.P.C. did not make any allegation against anyone including applicants and she changed her earlier version in her statement recorded under Section 164 Cr.P.C.

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I have heard learned counsel for the parties and perused the record of the case.

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Although, from the record, it reflects that applicants could be arrested only after one and half years and they appear to be absconder but in the present matter they are in jail since December, 2019 i.e. for more than three and half years. Further, initially during first investigation, their involvement was fund false and on 07.07.2018 a report was filed in their favour and investigation was continued only against co-accused Suraj but thereafter during further investigation, they were again made accused and when they again made accused then they approached before this Court in the Month of October, 2018 in Criminal Writ Jurisdiction for quashing the FIR of the present case but their writ was dismissed by this Court.

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Further, from the record, it reflects that although, prosecutrix is hardly 14 years' old girl but in her statement recorded under Section 161 Cr.P.C. she categorically stated that she had gone herself from her house and while she was returning back after five days then on the way she was apprehended and she did not make any allegation against any one including applicants but in her statement recorded under Section 164 Cr.P.C. she made allegation of gang-rape against applicants and several others and therefore, it appears that she developed a new story in her statement recorded under Section 164 Cr.P.C.

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Further, applicants are not having any criminal history and they are in jail for more than three and half years.

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Therefore, considering the facts and circumstances of the case discussed above, in my view applicants are entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed .

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Let the applicants- Dharmendra Kumar and Rakesh be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicants shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(ii) The applicants shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

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(iii) The applicants shall not indulge in any criminal and anti-social activity.

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In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicants.

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Considering the fact that trial of the case is pending since the year 2020 and applicants are facing trial under the provisions of POCSO Act, therefore, considering the provisions of Section 35 POCSO Act and Section 309 Cr.P.C. trial court is directed to conclude the trial with a period of eight months from the date of production of certified copy of the order passed today by this Court, if there is no legal impediment.

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Order Date :- 10.8.2023 KK Patel

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Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad

Dharmendra Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Dharmendra Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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