✦ High Court of India · 31 Jul 2025

Dharmendra v. State of U.P. and

Case Details High Court of India · 31 Jul 2025

Court

High Court of India

Decided

31 Jul 2025

Bench

Not available

Length

2,807 words

Acts & Sections

Code of Criminal Procedure §161 Code of Criminal Procedure §164 Code of Criminal Procedure §173 Code of Criminal Procedure §173(2)Code of Criminal Procedure Indian Penal Code §3 Indian Penal Code §363

At the very outset, the learned A.G.A. submits that notice of this third application for bail has been served upon opposite party-4 on 14.4.2025. However, inspite of the service of notice no one has put in appearance on behalf of first informant/opposite party-4 to oppose this application for bail. Notice in respect of opposite party-2 was served in the office of opposite party-2 before filing this application for bail. However, inspite of service of notice, neither any objection/counter affidavit has been filed on behalf of by opposite party-2 in opposition to this application for suspension of sentence nor any one has put in appearance on his behalf to oppose this application for suspension of sentence, even in revised call. The first bail application of the applicant was rejected by this Court vide order dated 16.11.2023, passed in Criminal Misc. Bail Application No. 33808 of 2023 (Dharmendra Vs. State of U.P. and 3 Others). Subsequently, applicant filed repeat application for bail which also came to be rejected by this Court vide order dated 25.9.2024, passed in Criminal Misc. Bail Application No. 34668 of 2024 (Dharmendra Vs. State of U.P. and 3 Others). For ready reference, the order dated 25.9.2024 is reproduced herein under: "1. Heard Mr. Bed Prakash Rai, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. At the very outset, the learned A.G.A. submits that notice of present repeat application for bail has been served upon opposite party No.4. However, in spite of service of notice upon opposite party-4 neither any counter affidavit has been filed by opposite party No.4 nor anyone has put appearance on behalf of the opposite party No.4 to oppose this repeat application for bail.

4. This repeat application for bail has been filed by applicant-Dharmendra, seeking his enlargement on bail in Case Crime No. 108 of 2023, under Sections 363, 366, 368, 376(3) IPC, and Section 3/4 POCSO Act, Police Station- Pashim Sharira, District- Kaushambi, during the pendency of trial.

5. The first bail application of applicant was rejected by this Court by a detailed order dated 16.11.2023 passed in Criminal Misc. Bail Application No.33808 of 2023 (Dharmendra Vs. State of U.P. and 3 Others). For ready reference, the same is reproduced hereinunder:- "1. Heard Mr. Ashvni Mishra, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rishabh Tiwari, Advocate, holding brief of Mr. Vipin Chandra Lal, the learned counsel representing first informant- opposite party 4.

2. Perused the record.

3. This application for bail has been filed by applicant-Dharmendra seeking his enlargement on bail in Case Crime No. 108 of 2023, under Sections 363, 366, 368, 376(3) IPC and Sections 3/4 POCSO Act, Police Station- Pashim Sharira, District-Kaushambi during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 27.04.2023, a delayed FIR dated 15.05.2023 was lodged by first informant-Roshan Lal (father of the prosecutrix) and was registered as Case Crime No. 108 of 2023, under Sections 363, 366, 368, Police Station- Pashim Sharira, District-Kaushambi . In the aforesaid FIR, 4 persons namely (1) Dharmendra (2) Chhedilal, (3) Heeralal and (4) Pooja Devi have been nominated as named accused.

5. The gravamen of the allegations made in the FIR is to the effect that named accused enticed away the daughter of the first informant i.e. the prosecutrix namely X aged about 13 years.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. It is apposite to mention here that that the prosecutrix was recovered on 15.05.2023 i.e. prior to the lodging of the FIR. The Investigating Officer recorded the statement of the prosecutrix under Section 161 Cr.P.C. Same is on record as Annexure-1 to the supplementary affidavit filed by the learned counsel for applicant. The prosecutrix in her aforesaid statement has not supported the FIR. As per the said statement, the prosecutrix appears to be a willing and consenting party. Thereafter, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor, who medically examined her, has departed from her previous statement under Section 161 Cr.P.C. and has now supported the FIR. However, the Doctor, who medically examined the prosecutrix, did not find any signs on her body so as to denote commission of deliberate or forceful sexual assault. With regard to the private part of the prosecutrix, the Doctor has opined that no injury was detected on the same. Certain samples were taken from the body of the prosecutrix for pathological examination. However, according to the learned A.G.A., the results of the same are in negative. As per the medical opinion, the prosecutrix is said to be aged about 16 to 17 years. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Same is on record at page 23 of the paper book. The prosecutrix in her aforesaid statement has departed from her previous statement under Section 161 Cr.P.C. and has now come up with a new story alleging human trafficking.

7. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant alone is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 11.07.2020 whereby applicant has been charge sheeted under ections 363, 366, 368, 376(3) IPC and Sections 3/4 POCSO Act whereas the other named accused have been exculpated.

8. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. According to the learned counsel for applicant, the medical evidence does not support the charge sheet. It is then contended that the prosecutrix in her statements under Sections 161/164 Cr.P.C. has not remained clear, categorical and consistent. To the contrary, the prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her previous statement under Section 161 Cr.P.C. and has come up with a new story which is totally alien to the FIR as well as the statement under Section 161 Cr.P.C. However, the departure so made remains unexplained up to this stage. On the above premise, it is thus urged that when the statements of the prosecutrix referred to above were taken as a whole suffer from the vice of exaggeration, embellishment and contradiction for which, no explanation has come forward from the prosecutrix herself, therefore, the same are unworthy of credit and therefore, not worthy of reliance.

9. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 16.05.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co- operate with the trial.

10. Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. They submit that the occurrence giving rise to present criminal proceedings occurred on 27.04.2023. As per the date of birth of the prosecutrix recorded in the institution first attended by her i.e. 10.07.2007, the prosecutrix was aged about 15 years, 9 months and 17 days on the date of occurrence. Since the prosecutrix was below 16 years of age, therefore, her consent, if any, is wholly immaterial. Considering the tender age of the prosecutrix, the applicant does not deserve any sympathy by this Court.

11. When confronted with above, the learned counsel for applicant could not overcome the same.

12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, complicity of applicant, accusations made coupled with the fact that since the prosecutrix was below 16 years of age on the date of occurrence, therefore, her consent, if any, is wholly immaterial, the law laid down by the Apex Curt in X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.

13. As a result, present application for bail fails and is liable to be rejected.

14. It is accordingly rejected. "

6. Learned counsel for applicant contends that subsequent to the order dated 16.11.2023, the prosecutrix has deposed before court below. Copy of the statement of the prosecutrix has been brought on record as annexure-7 to this affidavit. With reference to above, the learned counsel for applicant contends that the prosecurix in her deposition before court below has not supported the F.I.R. On the above premise, the learned counsel for applicant contends that once the prosecutrix has herself not supported the F.I.R., no good ground exists to prolong the custodial arrest of applicant during the pendency of trial. Furthermore, the statements of the first informant/father of the prosecutrix (PW-1) and that of the prosecutrix (PW- 2) have already been recorded. He therefore, contends that in case, applicant is enlarged on bail, then in that eventuality it cannot be said that if, applicant is enlarged on bail, applicant shall either terrorize the witnesses or shall hamper the course of trial.

7. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 16.05.2023. As such, he has undergone more than 1 year and 4 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that upto this stage, two prosecution witnesses namely PW-1 Roshan Lal first informant (father of the prosecutrix) and PW-2, the prosecutrix have deposed before Court below. Both the prosecution witnesses who have deposed before Court below upto this stage have fully supported the F.I.R. On the above premise, the learned A.G.A. contends that no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of the present repeat application for bail with reference to the record at this stage.

9. Be that as it may, this Court on the basis of two prudence compel this Court, not to interpret or evaluate the evidence which is emerged during course of trial as any observations made by this Court as may affect the prosecution or defence or may itself trial.

10. In view of above, this Court decline to grant any intervene in present repeat application.

11. As a result, the present repeat application for bail fails and is liable to be dismissed.

12. It is, accordingly, dismissed. " Learned counsel for applicant submits that though applicant is a named and charge sleeted accused and facing trial before Court below, however, in view of the facts as have now crystalized on record, applicant is liable to be enlarged on bail. According to the learned counsel for applicant, since the statements of the prosecutrix who deposed before Court below as P.W.2 and first informant who deposed before Court below as P.W.1 have already recorded therefore no good or justifiable ground now exists to prolong the custodial arrest of applicant during the pendency of trial. Since the statement of the first informant and the prosecutrix have been recorded, therefore, in case applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall either terrorize the witness or shall hamper the Course of trial. It is thus urged that no good or justifiable ground now exists to prolong the custodial arrest of applicant. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 16.5.2023. As such, he has undergone more than two years and two months of incarceration. The Charge- sheet/police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during pendency of trial. It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail during the pendency of trial. In case the applicant is enlarged on bail, then in that eventuality he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. for State has vehemently opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Learned A.G.A. further submits that prosecutrix who has deposed before Court below as P.W.2 has fully supported the F.I.R. Taking the Court to the deposition of prosecutrix, copy of which is on record at Annexure-8 to the affidavit filed in support of present application, learned A.G.A. submits that prosecutirx in her deposition before Court below has not only supported the F.I.R. but has categorically detailed the manner of occurrence. Since the prosecutrix is a child within the meaning of the term child, as defined under the POCSO Act, therefore, no indulgence be granted by this Court in favour of applicant. In view of above, the learned A.G.A. contends that no good or sufficient ground has emerged so as to enlarge the applicant on bail. It is then contended by the learned A.G.A. that main allegation regarding commission of rape has been leveled against applicant, therefore no parity can be claimed by applicant from the fact that other co-accused have been enlarged on bail. Considering the nature and gravity of offence, complained of, the learned A.G.A. submits that the period of incarceration undergone by applicant, is by itself not so sufficient a ground so as to enlarge the applicant on bail. As such, the third application for bail is liable to be rejected. When confronted with above, the learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence accusation made as well as complicity of applicant, coupled with the fact that objections raised by the learned A.G.A. in opposition to the present third application for bail are clearly borne out from the record and further the same could not be dislodged by the learned counsel for applicant with reference to the record. Therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of the present third application for bail, but without making any comment on the merits of the case, this Court does not find any new good or sufficient ground so as to enlarge the applicant on bail. In view of above, the present third application for bail fails and is liable to be rejected. It is accordingly rejected. Order Date :- 31.7.2025/Arshad ARSHAD MAHMOOD High Court of Judicature at Allahabad

2. Perused the record.

5. The gravamen of the allegations made in the FIR is to the effect that named accused enticed away the daughter of the first informant i.e. the prosecutrix namely X aged about 13 years.

11. When confronted with above, the learned counsel for applicant could not overcome the same.

13. As a result, present application for bail fails and is liable to be rejected.

14. It is accordingly rejected. "

10. In view of above, this Court decline to grant any intervene in present repeat application.

11. As a result, the present repeat application for bail fails and is liable to be dismissed.

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