Allowed

Harikesh @ Balli @ Khokhey v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC5 Dec 2024CRLA/2409/2024

Case brief

AI extract

What is this about?

In this criminal appeal, the Allahabad High Court allowed an appeal filed by an appellant accused of rape and atrocity. The Court set aside the bail denial order stemming from contradictory witness testimonies and insufficient medical evidence supporting the prosecution's claim of private part injuries, granting bail to the applicant.

What did the court decide?

The appellant is released on bail by furnishing a personal bond with two sureties, subject to strict conditions regarding evidence tampering and court appearance.

Harikesh @ Balli @ Khokhey Vs State of U.P. Thru. Prin… — Caste Atrocities | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:81263

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Court No. - 16

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Case :- CRIMINAL APPEAL No. - 2409 of 2024

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Appellant :- Harikesh @ Balli @ Khokhey Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Appellant :- Vishwa Nath Singh,Shiv Kumar Yadav

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Counsel for Respondent :- G.A.,Shiv Shankar Singh

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the appellant, learned A.G.A. appearing for the State and learned counsel for the complainant as well as perused the record.

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This criminal appeal has been filed by the appellant under Section 14A (2) the Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to set aside the order dated 05.07.2024 passed in Bail application No.2068/2024, arising out of case crime No.263/2024, under Sections 376-D, 323, 504, 506, 341 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station Ramnagar, District Barabanki.

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It is alleged in the production case that daughter of the informant aged about seventeen years while was returning home after grazing the goats accused stopped him and forcibly took her on the motor-cycle by gagging her mouth and in the corn field she was gang raped and was beaten by kicks, fists and danda and also hurled abuses while they were going.

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Learned counsel for the appellant while pressing the appeal submits that, the appellant has been falsely implicated in this case. Nothing as claimed by the prosecution has been committed by the appellant.

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It is contended on behalf of the appellant that appellant has no criminal history. The statement of the victim under Sections 161 & 164 Cr.P.C. are totally contradictory each other. The place of occurrence has been changed. The medical does not support the prosecution story as they are no injuries suffered by the victim on her private part. There are marks of beating which have come due to beating given by her parents thus, the injuries cannot be linked for offence under Sections 376-D IPC there is no other corroborative material in the prosecution case. The victim is a major girl aged about 21 years.

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It is further submitted that, the appellant is languishing in jail in this matter since 21.04.2024. Charge-sheet in the matter has already been submitted. There is no likelihood that the appellant-applicant after release on bail may flee from the process of law or will misuse the liberty of bail granted by this Court.

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Learned A.G.A. as well as learned counsel for the complainant have opposed the prayer for bail, but could not confront the factual submissions made by the learned counsel for the appellant-applicant.

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Considering the facts and circumstance of the case, period of incarceration gone into by the application as he is in jail since 21.04.2024 having no criminal history, contradictory statement of the victim under Section 161 and 164 Cr.P.C. and prima facie there does not appear to be any corroborative medical injury on the private part of the victim, without commenting upon merits, I am of the view that the learned court below has failed to appreciate the material available on record. In view of above, the order passed by the court below is liable to be set aside.

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Accordingly, the appeal is allowed and the order dated 05.07.2024 passed in Bail application No.2068/2024, arising out of case crime No.263/2024, under Sections 376-D, 323, 504, 506, 341 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station Ramnagar, District Barabanki, is set aside.

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Let the appellant-applicant Harikesh @ Balli @ Khokhey involved in aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

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(i) The appellant will not tamper with the evidence during the trial.

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(ii) The appellant will not pressurize/ intimidate the prosecution witness.

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(iii) 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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(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence

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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, without sufficient cause, 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 and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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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The pending application, if any, too stands disposed of.

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Order Date :- 5.12.2024 Saurabh Yadav/-

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Digitally signed by :- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Harikesh @ Balli @ Khokhey v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Harikesh @ Balli @ Khokhey v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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