High Court · 2025

1-Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant / complainant. 2-The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 0163 of 2024, under Sections 376, 504, 506, 228-A, 120-B I.P.C., Section 17 POCSO Act and Section 67-A I.T Act, Police Station-Kokhraj, District-Kaushambi, during the pendency of trial. 3-Brief facts of the case are that the complainant who is mother of victim got a first information report lodged on 06.06.2024 with regard to an incident which took place on 29.04.2024 for the offence under Sections 376(3), 504, 506 I.P.C., 3/4 POCSO Act and 67A IT Act against Devendra Mishra, Principal of Rambali Sharma Vidhyalaya, Bharwari. The extract of the F.I.R. is quoted herein- below:- "...........पቚኋरररननी ककी लड़ककी...उ्቞ लगभग 17 वरर ककी हहै। पቚኋरररननी ददिनቚኋाሪक 29.4.2024 कक भहैरकपपुर अपनने ररश्तनेदिቚኋरनी दमिटनी दिनेनने गयनी रनी और मिनेरने पदत … ..मिजदिदरनी करनने चलने गयने रने और मिनेरनी पपुतनी घर पर अकनेलनी रनी समिय लगभग 11.05 ददिन मिने दिनेवनेन््ቖ कपुमिቚኋर दमिशቚኋ आतቚኋ हहै जक रቚኋमिबलनी शमिቚኋर दवदቚኋलय भरवቚኋरनी मिम पधቚኋनቚኋचቚኋयर कቚኋयररत हहै जक मिनेरनी लड़ककी सने पदछቚኋ ककी घर पर ककौन ककौन हहै। तभनी मिनेरनी लड़ककी ... नने कहቚኋ दक मिनेरनी मिቚኋतቚኋ दमिटनी दिनेनने भहैरकपपुर गयनी हहै। तरቚኋ मिनेरने दपतቚኋ मिजदिदरनी करनने गयने हहै और घर मिम ककई नहीሻ हहै। इतनቚኋ सपुनकर दिनेवनेन््ቖ दमिशቚኋ मिनेरनी लड़ककी कक अकनेलቚኋ जቚኋनकर मिनेरने घर कने अन्दिर घपुस आयቚኋ और मिनेरनी लड़ककी कने सቚኋर जबरजस्तनी दिपुष्कमिर दकयቚኋ मिनेरनी लड़ककी चनीखतनी व दचलቚኋतनी रहनी लनेदकन दिनेवनेन््ቖ दमिशቚኋ मिनेरनी लड़ककी कቚኋ गलቚኋ दिबቚኋकर बकलቚኋ सቚኋलनी दचलቚኋनቚኋ नहनी तक तपुझने जቚኋन सने मिቚኋर डቚኋलदाሪगቚኋ। मिनेरनी बनेटनी तडप रहनी रनी जक ककी दिनेवनेन््ቖ दमिशቚኋ हवस कቚኋ पपुजቚኋरनी हहै। मिनेरनी बनेटनी कने सቚኋर जबरजस्तनी दिपुष्कमिर दकयቚኋ तभनी दिनेवनेन््ቖ दमिशቚኋ मिनेरने घर सने जቚኋतने समिय बकलቚኋ ककी सቚኋलनी अगर यह बቚኋत दकसनी सने बतቚኋयनी तक तपुझने और जቚኋन सने मिरवቚኋ दिदाሪगቚኋ। तभनी दिनेवनेन््ቖ दमिशቚኋ सभनी हदिने पቚኋर कर दिनेतቚኋ हहै और जब मिनेरनी बनेटनी कने सቚኋर दिपुष्कमिर कቚኋ वनीदडयक और फकटक वቚኋयरल करनने लगቚኋ तरቚኋ अन्य लकगक कक भनेजनने लगቚኋ जब मिनेरने पररवቚኋर वቚኋलक नने फकटक व वनीदडयक दिनेखቚኋ तक मिपुझसने बतቚኋयने तब यह बቚኋत मिहैनने अपनने लड़ककी सने पदछቚኋ तक मिनेरनी लड़ककी रक रककर पदरनी दिस्तቚኋ बतቚኋयनी इसरलयने पቚኋरररननी अत्यन्त परनेशቚኋन हककर शनीमिቚኋन जनी कक रलरखत पቚኋररनቚኋ दिने रहनी हहै। पቚኋररनቚኋ अततः शनीमिቚኋन जनी सने दनवनेदिन हहै दक पቚኋरररननी ककी ररपकटर दिजर कर दवपकनी कने दवरु्ቍ कቚኋनदननी कቚኋयरवቚኋहनी करनने ककी ककपቚኋ करने।..." 4-After culmination of investigation, charge-sheet has been submitted against Devendra Mishra, Raju Singh Lodh @ Surendra (applicant) and Rakesh Patel and they are facing trial. 5-It is argued by learned counsel for the applicant that the applicant is not named in F.I.R. The allegation of rape on victim has been levelled against Devendra Mishra. The complicity of the applicant came into light during investigation of the case and the role of making the video of the said incident of rape has been assigned to the present applicant-Raju Singh Lodh @ Surendra. He next submits that before the trial Court statement of the victim has been recorded and she in her cross-examination made on behalf of the applicant, stated inter-alia that she had given the statement against the present applicant at the behest of accused Devendra Mishra. On the strength of aforesaid submissions, it is argued that the case of the present applicant is distinguishable from that of Devendra Mishra, hence, the applicant who is languishing in jail since 08.06.2024 may be enlarged on bail. 6-On the other hand, Mr. Deepak Mishra, learned A.G.A. for the State as well as learned counsel for the complainant vehemently opposed the submissions of learned counsel for the applicant by contending that the victim, in her examination-in-chief, which was recorded on 10.10.2024 before the trial Court has made specific allegation of rape on her against Devendra Mishra and also levelled the allegation of making video of the said incident against the present applicant. Much emphasis has been given by contending that the cross examination of the victim was not recorded in continuation of her examination-in-chief but the same was recorded after delay of 28 days' in violation of the guidelines laid down in the cases of Rajesh Yadav and Another vs. State of U.P., 2022 LiveLaw (SC) 137, hence possibility of winning over the victim from the accused's side cannot be ruled out. 7-Having heard learned counsel for the parties and examined the matter in its entirety, I find that victim in her examination-in-chief has supported the prosecution case levelling allegation of making video of rape incident against the applicant. The examination-in- chief and cross-examination of victim has not been recorded on the same day and there was a gap of about 28 days between examination-in-chief and cross-examination, whereas Hon'ble Apex Court in the case of Rajesh Yadav (Supra) has settled the law giving directions that to avoid the possibility of influence over the prosecution witnesses, and cross- examination of any prosecution witness must be recorded on the same day but in the present case the said direction has not been followed. examination-in-chief 8-The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law, if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances. 9-The issue regarding the evidentiary value of examination-in- chief of such witnesses, who had turned hostile in their cross- examination, has been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination- in-chief cannot be outrightly discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution. The said view has been again reiterated by the Hon'ble Supreme Court recently in the case of K.P. Tamilmaran vs. State by Deputy Superintendent of Police, 2025 SCC OnLine SC 958. 10-This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man may tell lie but record and circumstances do not. 11-Since the allegations of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not affect the merits of the trial. 12-Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence which is most heinous in nature, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail. 13-Accordingly, the bail application is rejected. 14-It is made clear that the observations contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial. Order Date :- 2.5.2025 Saurabh SAURABH KUMAR High Court of Judicature at Allahabad

1-Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant / complainant. 2-The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 0163 of 2024, under Sections 376, 504, 506, 228-A, 120-B I.P.C., Section 17 POCSO Act and Section 67-A I.T Act, Police Station-Kokhraj, District-Kaushambi, during the pendency of trial. 3-Brief facts of the case are that the complainant who is mother of victim got a first information report lodged on 06.06.2024 with regard to an incident which took place on 29.04.2024 for the offence under Sections 376(3), 504, 506 I.P.C., 3/4 POCSO Act and 67A IT Act against Devendra Mishra, Principal of Rambali Sharma Vidhyalaya, Bharwari. The extract of the F.I.R. is quoted herein- below:- "...........पቚኋरररननी ककी लड़ककी...उ्቞ लगभग 17 वरर ककी हहै। पቚኋरररननी ददिनቚኋाሪक 29.4.2024 कक भहैरकपपुर अपनने ररश्तनेदिቚኋरनी दमिटनी दिनेनने गयनी रनी और मिनेरने पदत … ..मिजदिदरनी करनने चलने गयने रने और मिनेरनी पपुतनी घर पर अकनेलनी रनी समिय लगभग 11.05 ददिन मिने दिनेवनेन््ቖ कपुमिቚኋर दमिशቚኋ आतቚኋ हहै जक रቚኋमिबलनी शमिቚኋर दवदቚኋलय भरवቚኋरनी मिम पधቚኋनቚኋचቚኋयर कቚኋयररत हहै जक मिनेरनी लड़ककी सने पदछቚኋ ककी घर पर ककौन ककौन हहै। तभनी मिनेरनी लड़ककी ... नने कहቚኋ दक मिनेरनी मिቚኋतቚኋ दमिटनी दिनेनने भहैरकपपुर गयनी हहै। तरቚኋ मिनेरने दपतቚኋ मिजदिदरनी करनने गयने हहै और घर मिम ककई नहीሻ हहै। इतनቚኋ सपुनकर दिनेवनेन््ቖ दमिशቚኋ मिनेरनी लड़ककी कक अकनेलቚኋ जቚኋनकर मिनेरने घर कने अन्दिर घपुस आयቚኋ और मिनेरनी लड़ककी कने सቚኋर जबरजस्तनी दिपुष्कमिर दकयቚኋ मिनेरनी लड़ककी चनीखतनी व दचलቚኋतनी रहनी लनेदकन दिनेवनेन््ቖ दमिशቚኋ मिनेरनी लड़ककी कቚኋ गलቚኋ दिबቚኋकर बकलቚኋ सቚኋलनी दचलቚኋनቚኋ नहनी तक तपुझने जቚኋन सने मिቚኋर डቚኋलदाሪगቚኋ। मिनेरनी बनेटनी तडप रहनी रनी जक ककी दिनेवनेन््ቖ दमिशቚኋ हवस कቚኋ पपुजቚኋरनी हहै। मिनेरनी बनेटनी कने सቚኋर जबरजस्तनी दिपुष्कमिर दकयቚኋ तभनी दिनेवनेन््ቖ दमिशቚኋ मिनेरने घर सने जቚኋतने समिय बकलቚኋ ककी सቚኋलनी अगर यह बቚኋत दकसनी सने बतቚኋयनी तक तपुझने और जቚኋन सने मिरवቚኋ दिदाሪगቚኋ। तभनी दिनेवनेन््ቖ दमिशቚኋ सभनी हदिने पቚኋर कर दिनेतቚኋ हहै और जब मिनेरनी बनेटनी कने सቚኋर दिपुष्कमिर कቚኋ वनीदडयक और फकटक वቚኋयरल करनने लगቚኋ तरቚኋ अन्य लकगक कक भनेजनने लगቚኋ जब मिनेरने पररवቚኋर वቚኋलक नने फकटक व वनीदडयक दिनेखቚኋ तक मिपुझसने बतቚኋयने तब यह बቚኋत मिहैनने अपनने लड़ककी सने पदछቚኋ तक मिनेरनी लड़ककी रक रककर पदरनी दिस्तቚኋ बतቚኋयनी इसरलयने पቚኋरररननी अत्यन्त परनेशቚኋन हककर शनीमिቚኋन जनी कक रलरखत पቚኋररनቚኋ दिने रहनी हहै। पቚኋररनቚኋ अततः शनीमिቚኋन जनी सने दनवनेदिन हहै दक पቚኋरररननी ककी ररपकटर दिजर कर दवपकनी कने दवरु्ቍ कቚኋनदननी कቚኋयरवቚኋहनी करनने ककी ककपቚኋ करने।..." 4-After culmination of investigation, charge-sheet has been submitted against Devendra Mishra, Raju Singh Lodh @ Surendra (applicant) and Rakesh Patel and they are facing trial. 5-It is argued by learned counsel for the applicant that the applicant is not named in F.I.R. The allegation of rape on victim has been levelled against Devendra Mishra. The complicity of the applicant came into light during investigation of the case and the role of making the video of the said incident of rape has been assigned to the present applicant-Raju Singh Lodh @ Surendra. He next submits that before the trial Court statement of the victim has been recorded and she in her cross-examination made on behalf of the applicant, stated inter-alia that she had given the statement against the present applicant at the behest of accused Devendra Mishra. On the strength of aforesaid submissions, it is argued that the case of the present applicant is distinguishable from that of Devendra Mishra, hence, the applicant who is languishing in jail since 08.06.2024 may be enlarged on bail. 6-On the other hand, Mr. Deepak Mishra, learned A.G.A. for the State as well as learned counsel for the complainant vehemently opposed the submissions of learned counsel for the applicant by contending that the victim, in her examination-in-chief, which was recorded on 10.10.2024 before the trial Court has made specific allegation of rape on her against Devendra Mishra and also levelled the allegation of making video of the said incident against the present applicant. Much emphasis has been given by contending that the cross examination of the victim was not recorded in continuation of her examination-in-chief but the same was recorded after delay of 28 days' in violation of the guidelines laid down in the cases of Rajesh Yadav and Another vs. State of U.P., 2022 LiveLaw (SC) 137, hence possibility of winning over the victim from the accused's side cannot be ruled out. 7-Having heard learned counsel for the parties and examined the matter in its entirety, I find that victim in her examination-in-chief has supported the prosecution case levelling allegation of making video of rape incident against the applicant. The examination-in- chief and cross-examination of victim has not been recorded on the same day and there was a gap of about 28 days between examination-in-chief and cross-examination, whereas Hon'ble Apex Court in the case of Rajesh Yadav (Supra) has settled the law giving directions that to avoid the possibility of influence over the prosecution witnesses, and cross- examination of any prosecution witness must be recorded on the same day but in the present case the said direction has not been followed. examination-in-chief 8-The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law, if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances. 9-The issue regarding the evidentiary value of examination-in- chief of such witnesses, who had turned hostile in their cross- examination, has been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination- in-chief cannot be outrightly discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution. The said view has been again reiterated by the Hon'ble Supreme Court recently in the case of K.P. Tamilmaran vs. State by Deputy Superintendent of Police, 2025 SCC OnLine SC 958. 10-This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man may tell lie but record and circumstances do not. 11-Since the allegations of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not affect the merits of the trial. 12-Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence which is most heinous in nature, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail. 13-Accordingly, the bail application is rejected. 14-It is made clear that the observations contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial. Order Date :- 2.5.2025 Saurabh SAURABH KUMAR High Court of Judicature at Allahabad