High Court
Case Details
Neutral Citation No. - 2023:AHC:120368 Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19190 of 2023 Applicant :- Brajesh Sachan @ Kukku Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shiv Kumar Singh,Sarvesh Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J. 1. Sri Jhamman Ram, learned AGA, for the State, apprised the Court that notice has been served to the informant of the case on 25.4.2023. 2. Despite service of notice, none appeared on behalf of the informant. 3. Supplementary affidavit filed today on behalf of the applicant is taken on record.
Legal Reasoning
4. Heard Sri Sarvesh Kumar Dubey, learned counsel for the applicant and Sri Jhamman Ram, learned AGA, for the State. 5. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail in Case Crime No.438 of 2022, under Sections 452 and 376(3) IPC and Section 3kha/4(2) POCSO Act, Police Station Bhogipur, District Kanpur Dehat during pendency of the trial. 6. FIR of the present case was lodged against the applicant on 29.10.2022 under Section 354 IPC and Section 9m/10 POCSO Act and according to the FIR applicant on 23.10.2022 was trying to outrage the modesty of the minor daughter of the informant , aged about 10 years. 7. Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and baseless and FIR of the present case was lodged under Section 354 IPC and Section 9m/10 POCSO Act but after the statement of victim recorded under Section 164 Cr.P.C. case was converted under Section 376(3) IPC and Section 3/4 POCSO Act and this fact clearly suggests that in the statement under Section 164 Cr.P.C. victim started making allegation of rape against the applicant on the instigation of her parents. 8. He further submits that from the FIR it appears that mother of the victim arrived at spot and thereafter applicant managed to escape but when the statement of the victim was recorded under Section 161 Cr.P.C. then she stated that the mother of Shugan (Smt. Anita) witnessed that applicant while he was outraging her modesty and she informed her mother and when the statement of Smt. Anita (mother of Shagun) and mother of victim were recorded under Section 161Cr.P.C. then they did not make any allegation of rape against the applicant and therefore, it is a case of outraging the modesty of the victim and it does not travel beyond Section 354 IPC. 9. He further submits that FIR of the present case was lodged after six days and this fact shows that applicant has been falsely implicated by the informant in the present case. He next submits that applicant is the neighbour of the informant and some dispute with regard to drain is pending between both the parties and only due to this reason applicant has been implicated by the informant in the present matter. 10. He further submits that during investigation when Investigating Officer proposed for medical of victim then her mother refused for the same and this fact again suggests that on the basis of false allegation applicant has been made accused in the present matter. 11. He further submits that applicant is not having previous criminal history and he is in jail in the present matter since 5.12.2022. 12. Per contra, learned AGA opposed the prayer for bail and submits that victim in her statement recorded under Section 164 Cr.P.C. made allegation that applicant has inserted his finger in her vagina and therefore, act of applicant attracts the offence under Section 376 IPC and applicant could not place any good ground for his false implication and, therefore, considering the age of victim and the allegation of rape, applicant is not entitled to be released on bail. 13. I have heard learned counsel for the parties and perused the record of the case. 14. Although victim in her statement under Section 164 Cr.P.C. made allegation of insertion of finger by applicant in her vagina but no such allegation was made by her in her statement earlier recorded under Section 161 Cr.P.C. and in her statement under Section 161 Cr.P.C. she made allegation of outraging her modesty against the applicant and even the alleged eye witness Smt. Anita (mother of Shagun) also did not state anything about the rape alleged to have been committed by applicant and from her statement it reflects that she very casually stated that she witnessed that applicant while he was trying to outrage the modesty of the victim. 15. Further, FIR of the present case was lodged after about a week and no explanation has been given by the informant in this regard and even during investigation the mother of the victim did not permit for her internal medical examination. 16. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail. 17. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed. 18. Let the applicant-Brajesh Sachan @ Kukku 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:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant 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. (iii) The applicant shall not indulge in any criminal and anti- social activity. 19. 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 applicant. 20. 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. Order Date :- 30.5.2023 SKM Digitally signed by :- SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad