High Court
Case Details
Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33403 of 2021 Applicant :- Kartik Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Shravana Kumar Yadav,Shri Krishan Yadav Counsel for Opposite Party :- G.A.,Sunder Singh Hon'ble Sanjay Kumar Pachori,J.
Legal Reasoning
After considering the facts of the present case it prima facie appears that; (a) The prosecutrix is a married lady, who has child aged about 8 years at the time of incident; (b) Victim has left her matrimonial house in the year 2019; (c) Offence of committing rape has been committed in the house of the applicant; (d) There is no mention of date and time of committing the offence of gang rape in the allegation of first information report as well as in the statements of the victim recorded under Sections 161 & 164, Cr.P.C.; (e) It is further submitted that there is material contradiction in the allegation of the first information report as well as statements of the victim recorded under Sections 161 & 164, Cr.P.C. with regard to place of incident and preparation of video; (f) Two screenshot photographs have been recovered during the course of investigation; (g) Co-accused Nattu Yadav @ Shivansh Yadav, having similar role, has been granted bail by a Coordinate Bench of this Court vide order dated 8.2.2022 in Criminal Misc. Bail Application No. 45302 of 2021. It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Arguments
Heard Shri Krishan Yadav, learned counsel for the applicant, learned A.G.A. for the State, Shri Sunder Singh, learned counsel for the first informant and perused the material on record. The present bail application has been filed on behalf of applicant Kartik Yadav under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 123 of 2021 for offence punishable under Sections 376-D, 506, 120-B of the Indian Penal Code and Section 67-A of Information Technology Act, registered at Police Station Gagalheri, District Saharanpur, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Saharanpur vide order dated 13.7.2021. Brief facts of the case are that the First Information Report dated 18.5.2021 has been lodged by the victim against the applicant and two other named co-accused persons Nattu Yadav and Smt. Sanyogita stating therein that a dispute arose between the victim and her husband in the year 2019 and she left her matrimonial house along with her son, aged about 8 years. She went to meet the husband of his friend at AIIMS, Rishikesh where she met the applicant and other co-accused Nattu Yadav. After that they enticed away the victim and kept her in the village. The applicant and other co-accused Nattu Yadav committed rape with the victim. After that co-accused Nattu Yadav brought her in the Ashok Hotel, Saharanpur and made her video. The applicant and co-accused Nattu Yadav threatened her to viral the video. After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 18.5.2021. The victim has denied her medical examination on 18.5.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 11.6.2021. After recording the statements of the prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted against the applicant and other co-accused Nattu Yadav on 18.12.2021. The applicant was arrested on 8.6.2021. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that the prosecutrix is a married lady, who has a child aged about 8 years. It is further submitted that the victim left her matrimonial house and came in contact with the husband of her friend, who was suffering from cancer and was admitted to the hospital at AIIMS, Rishikesh. It is further submitted that the prosecutrix met with the present applicant and co-accused Nattu Yadav in the hospital. It is further submitted that the victim has gone with the applicant and other co-accused in the village of the present applicant where she resided. It is further submitted that there is no mention of date and time of committing the offence of gang rape in the allegation of first information report as well as in the statements of the victim recorded under Sections 161 & 164, Cr.P.C. It is further submitted that no video of committing rape has been collected during the course of investigation. It is further submitted that no mobile of the applicant or victim has been recovered during the course of investigation. It is further submitted that two obscene photographs, which have been delivered by the victim to the Investigating Officer, are screenshots only. It is further submitted that there is material contradiction in the allegation of the first information report as well as statements of the victim recorded under Sections 161 & 164, Cr.P.C. with regard to place of incident as well as preparation of video. It is further submitted that co-accused Nattu Yadav @ Shivansh Yadav, having similar role, has been granted bail by a Coordinate Bench of this Court vide order dated 8.2.2022 in Criminal Misc. Bail Application No. 45302 of 2021. He has next argued that the applicant has explained his criminal history of one case bearing case crime No. 171 of 2021, under Sections 452, 323, 504, 506, IPC, P.S. Janakpuri, District Saharanpur and in the aforesaid case, applicant has been granted bail by the court below on 18.6.2021, copy of bail order is annexed as Annexure S.A.-1 to the Supplementary Affidavit dated 28.9.2021. If the applicant is released on bail, he shall not misuse the liberty of bail. Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.