Allowed

Momin Khan @ Momin v. State of U.P Thru. Addl. Chief Secy. Home Lko. and Another

Allahabad HC11 Jun 2024CRLA/1510/2024

Case brief

AI extract

What is this about?

The court allowed criminal appeals against the rejection of bail in a case involving allegations of sexual assault and caste atrocities. The court set aside the lower court's order, noting the victim was 19, the FIR lacked rape allegations, and medical evidence showed no injury, concluding the trial court committed material illegality.

What did the court decide?

Appellants enlarged on bail on furnishing personal bonds and sureties, subject to conditions regarding court attendance and witness tampering.

Momin Khan @ Momin vs State of U.P Thru. Addl. Chief… — Caste Atrocities | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:51476

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 1510 of 2024

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Appellant :- Momin Khan @ Momin Respondent :- State Of U.P Thru. Addl. Chief Secy. Home Lko. And Another Counsel for Appellant :- Ankit Tripathi,Bhupendra Singh Bisht Counsel for Respondent :- G.A.,Ambrish Kumar Dwivedi,Kuldeep Kaur,Ravi Dwivedi

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AND

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Case :- CRIMINAL APPEAL No. - 1515 of 2024

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Appellant :- Kafil Khan Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another Counsel for Appellant :- Ankit Tripathi,Sudhanshu S. Tripathi Counsel for Respondent :- G.A.,Ambrish Kumar Dwivedi,Kuldeep Kaur,Ravi Dw,Ravi Dwivedi

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Hon'ble Mohd. Faiz Alam Khan,J.

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Vide order dated 23.5.2024 passed in Criminal Appeal No. 1515 of 2024 the above mentioned both appeals were connected and for the sake of convenience the above mentioned both appeals are disposed of with this common order.

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Heard learned counsel for the appellant and Shri Ambrish Kumar Dwivedi, learned counsel for the opposite party no.2/ victim/ informant as well as learned A.G.A. for the State and perused the record.

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Above placed both appeals have been preferred under Section 14 (A) (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against impugned order dated 27.03.2024, passed by Special Judge, (SC/ST Act), Sitapur, in Bail Application No. 361 of 2024, arising out of Case Crime No. 042 of 2024, under Sections 376-D, 504, 506 IPC and Sections 3(2) 5 of SC/ST Act, Police Station- Manpur, District- Sitapur, whereby the bail applications of the appellants/applicants- have been rejected.

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Learned counsel for appellants submits that the appellants

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has falsely been implicated in this case and they have not committed any offence as claimed by the prosecution.

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While drawing the attention of this Court towards the First Information Report which has been lodged by none other than the victim herself, by moving a written application before the concerned S.H.O., it is vehemently submitted that in this FIR allegations are only to the extent of molestation and of dragging the victim into a sugarcane field, however, there is no allegation pertaining to commission of rape and it was only in the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., which have been recorded on 8th and 9th of February, 2024 for the very first time factum of rape has emerged.

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Elaborating further, it is vehemently submitted that the FIR of this case has been lodged with a delay of two days i.e. on 7.2.2024 and on the same day the prosecutrix/ victim was medically examined, however, her hymen was found intact and no marks of any injury, anywhere on her body or on the private parts of the victim/ prosecutrix was noticed and thus the oral allegations as levelled by the prosecutrix have not been corroborated by medical evidence.

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It is further submitted that the age of the victim as is evident from the FIR was 19 years at the date and time of the alleged incident and in the medical report of the prosecutrix the doctor has also noticed her date of birth as 10.7.2004 as per her High School Examination Certificate and thus prosecutrix aged was more than 19 years at the date and time of the incident.

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The attention of this Court has also been drawn on the D.N.A. report of the prosecutrix as well as of the accused/ appellants a copy of which has been placed on record by the State with its counter affidavit, wherein no significant findings have been found to connect the appellants with the crime.

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It is further submitted that it is on account of local village politics, a false case of sexual assault has been cooked up against the appellants. The appellants are in jail in this case since 10.2.2024.

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It is further submitted that criminal history of two cases has been alleged against the appellant- Kafil Khan while criminal history of only one case has been alleged against the appellantMomin, however, the same has been explained in paragraph no. 24 of the rejoinder affidavit dated 2.7.2024 filed in Criminal Appeal Nos. 1510 of 2024 and 1515 of 2024 and the appellant - Kafil Khan was having only one criminal case before his

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involvement in this case while appellant- Momin was not having any criminal antecedent as the Gangsters Act has been invoked against them after lodging of the FIR of the instant case and there is no apprehension that the accused-appellants after release on bail, may flee from the process of law or may otherwise misuse the liberty.

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Learned A.G.A. on the other hand submits that the appellants are accused of committing heinous offence and therefore they are not entitled to be released on bail.

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Shri Ambrish Kumar Dwivedi, learned counsel for the opposite party no.2/ victim, vehemently opposes the prayer of bail of the appellants on the ground that the First Information Report is not an encyclopedia of the facts and the facts in detail are not required to be stated therein and the victim in her statements recorded under Sections 161 and 164 Cr.P.C. has described in detail the manner in which the sexual assault has been committed on her. It is also submitted that though in the medical report of the victim injuries have not been found, however, in the D.N.A. report submitted by the Forensic Lab the presence of male chromosome has been noticed on the jeans, which was worn by the prosecutrix at the time of the incident and therefore, the appellants are not entitled to be released on bail.

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In rebuttal, learned counsel for the appellants submits that so far as the D.N. A. Report of the victim and appellants is concerned the male chromosome has been found on the jeans of the prosecutrix, however, the origin could not be traced and it is an admitted situation that the prosecutrix is also having male family members.

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Having heard learned counsel for the parties and having perused the record, it is reflected that the FIR of this case has been lodged by the victim/ opposite party no.2 herself. Admittedly she was aged about 19 years at the date and time of the incident at the time of lodging of FIR, however, there are no allegation with regard to commission of rape in the First Information Report. The prosecutrix has been medically examined and her 'hymen' has been found intact and no injury of any kind has been noticed on her person. No doubt the victim in her statements recorded under Sections 161 and 164 Cr.P.C. has stated about the commission of rape by the appellants, however, it has been argued with considerable force before this Court that since the FIR has been lodged by none other than the victim/ opposite party no.2 herself and there is no mention of commission of rape therein, her statements recorded under Sections 161 and 164 Cr.P.C. are material improvement

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of the story and could not be relied.

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Be that as it may the appellants are in jail in this case since 10.02.2024. Criminal history of one case with regard to the appellant- Kafil Khan has been adequately explained while the appellant- Momin was not having any criminal antecedent and the provision of Gangsters Act has been invoked against them after lodging of the FIR of the instant case and the presence of the appellants may be secured before the trial court by placing adequate conditions.

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Thus, in the considered opinion of this Court, having regard to enumeration herein above, the Special Court has committed material illegality in rejecting the prayer of bail of the appellants and thus the impugned order is liable to be set aside.

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In result the appeals filed by the appellants are allowed and the order dated 27.03.2024 is hereby set-aside .

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Let appellants- Momin Khan @ Momin and Kafil Khan be enlarged on bail in the aforesaid case crime number on their furnishing personal bonds and two sureties each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

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(i) The appellants shall not tamper with the evidence of witnesses and shall not commit any offence.

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(ii) The appellants 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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(iii) The appellants shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iv) In case, the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the appellants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.

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(v) The appellants shall remain present, in person, before the

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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 appellants are 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 them in accordance with law.

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Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case.

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Order Date :- 29.7.2024 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Momin Khan @ Momin v. State of U.P Thru. Addl. Chief Secy. Home Lko. and Another

Case brief

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Momin Khan @ Momin v. State of U.P Thru. Addl. Chief Secy. Home Lko. and Another

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