High Court · 2025

1-Heard Mr. Ashok Kumar Mishra, learned counsel for the applicant, learned Additional Government Advocate for the State and Ms. Sunita Chauhan, learned counsel appearing on behalf of the complainant/victim. 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. 373 of 2023, under Sections 498A, 376, 323, 504 I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Kandhrapur, District-Azamgarh, during the pendency of trial. 3-As per prosecution case, in brief, the complainant who is real sister-in-law (bhabhi) of the applicant lodged a first information report on 16.12.2023 for the alleged offence under Sections 498-A, 376, 377, 313, 323, 504 I.P.C. and Section 3/4 Dowry Prohibition Act against her husband-Sanjay Kumar Singh and his family members namely, Shobhnath Singh (father-in-law), Sunita Singh (mother-in-law), Shubham Singh (brother-in-law) and Shivam Singh (brother-in-law /present applicant) stating inter-alia that her marriage was solemnized with Sanjay Kumar Singh-elder brother of the applicant on 23.06.2023, in which her parents and other relatives had given sufÏcient dowry, but her in-laws were not satisfied with the said dowry as a result thereof, she was regularly being harassed on account of bringing less dowry in the marriage. When the victim became pregnant, they got her fetus aborted by giving medicines. The F.I.R. also alleges that her husband used to commit oral and carnal sex with her and on making protest, she was being beaten by him. When her husband went out of house, applicant Shivam entered into her room, bolted the door from inside and forcibly committed rape upon her and when she made a complaint about the said incident to her father-in-law and mother-in-law as well as to her husband, they said that you deserve for the same. 4-The main substratum of argument of learned counsel for the applicant is that the applicant is living along with his parents and their land was acquired by the Government for the purpose of constructing four lane and in lieu thereof, a sum of rupees four crores was given by the government as a land compensation, out of which a sum of rupees fifty lacs was deposited in the account of the applicant, therefore, the victim in order to get some share and to mount pressure upon the applicant, lodged the false first information report against the applicant making allegation of rape against him, whereas no such incident took place and there is no corroborative material on record in support of allegations levelled by the victim against the present applicant. Referring the statement under Section 164 Cr.P.C. of the victim, it is also pointed out that neither in the F.I.R. nor in the statement under Section 161 Cr.P.C. of the victim, there is any allegation of making carnal intercourse upon the victim by the applicant, but when her statement under Section 164 Cr.P.C. was recorded, she, in order to enhance the gravity of offence also made an improvement in her stand making allegation of carnal intercourse also, as such, the statement of the victim does not inspire confidence so far as the allegation of rape against the applicant is concerned. It is also pointed out that during investigation, husband of the victim had preferred a Criminal Misc. Writ Petition No. 101 of 2024 for quashing of the F.I.R. dated 16.12.2023, in which vide order dated 23.01.2024, the matter was referred to mediation. The other co-accused persons including the applicant have also filed separate Criminal Misc. Writ Petition No. 155 of 2024, in which interim protection was granted to them, but on account of excessive demand in mediation proceeding, the mediation between the parties concerned has failed and thereafter both the writ petitions have been dismissed. It is lastly submitted that the applicant is languishing in jail since 16.09.2024 having no criminal history to his credit. In case he is released on bail, he will not misuse the liberty of bail. 5-On the other hand learned A.G.A. as well as learned counsel appearing on behalf of the complainant opposed the prayer for bail of the applicant reiterating the prosecution case as mentioned in the F.I.R. but they do not dispute the other factum of the case as argued on behalf of the applicant. Learned counsel for the complainant referring the last portion of the charge-sheet pointed out that biological report is still awaited. She has also submitted that after lodging the F.I.R., accused Shivam and Shobhnath are extending threat to her, therefore, she has also lodged an F.I.R. on 30.01.2024 against them which was registered at Case Crime No. 31 of 2024, under Section 506 I.P.C. and the same is under investigation, therefore, bail application of the applicant is liable to be rejected. 6-Having heard the submissions of learned counsel for the parties and perusing the record, I find that after culmination of investigation, charge-sheet has been submitted in this case. During investigation, victim was given full opportunity of hearing, but she in her statement under Section 161 and 164 Cr.P.C. did not disclose the date and time of alleged incident of rape on her by the applicant. In the medical examination report dated 18.12.2023 also, no opinion of sexual violence has been given by the doctor and in pathological report dated 01.06.2024, no spermatozoa was seen in vaginal smear examination. The matrimonial dispute between the applicant and her husband is also admitted on record. The victim has also moved an application under Section 125 Cr.P.C. against her husband which is also pending. Hence considering the facts and circumstances of the case in totality, prima-facie this Court is of the view that no doubt in the matter of rape, statement of the victim is a primary consideration, but possibility of false implication of the applicant who is brother-in-law of the victim cannot be ruled out particularly in the situation where there is a matrimonial dispute between the victim and her husband, therefore, the applicant has made out a case for bail, but considering the contents of aforesaid first information report dated 30.01.2024 lodged by victim against the applicant and his father, under Section 506 I.P.C., this Court is of the view that applicant should be released on bail after recording statement of the victim before the trial Court. 7-Hence, the bail application is hereby allowed. 8-Let the applicant- Shivam Singh @ Shivam Kumar Singh, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable. (ii) That the applicant 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 ofÏcer or tamper with the evidence. (iii) That after his release, the applicant shall not involve in any criminal activity. (iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail. 9-In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant. 10-It is made clear that this order shall be effective after recording the statement (examination-in-chief and cross-examination) of the victim before the trial court. 11-The trial court shall frame charge against the applicant if the same has not already been framed within ten days' of presentation of this order before it and fix specific date for recording the statement of victim. The said date shall be communicated to the Superintendent of Police, Azamgarh. 12-On receiving the information from the trial court, Superintendent of Police, Azamgarh shall ensure the protection and production of victim on the date fixed before the trial court for recording her statement. 13-Copy of this order be sent to the concerned trial court as well as Superintendent of Police, Azamgarh within five days' for information and compliance. Order Date :- 23.1.2025 Saurabh SAURABH KUMAR High Court of Judicature at Allahabad

1-Heard Mr. Ashok Kumar Mishra, learned counsel for the applicant, learned Additional Government Advocate for the State and Ms. Sunita Chauhan, learned counsel appearing on behalf of the complainant/victim. 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. 373 of 2023, under Sections 498A, 376, 323, 504 I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Kandhrapur, District-Azamgarh, during the pendency of trial. 3-As per prosecution case, in brief, the complainant who is real sister-in-law (bhabhi) of the applicant lodged a first information report on 16.12.2023 for the alleged offence under Sections 498-A, 376, 377, 313, 323, 504 I.P.C. and Section 3/4 Dowry Prohibition Act against her husband-Sanjay Kumar Singh and his family members namely, Shobhnath Singh (father-in-law), Sunita Singh (mother-in-law), Shubham Singh (brother-in-law) and Shivam Singh (brother-in-law /present applicant) stating inter-alia that her marriage was solemnized with Sanjay Kumar Singh-elder brother of the applicant on 23.06.2023, in which her parents and other relatives had given sufÏcient dowry, but her in-laws were not satisfied with the said dowry as a result thereof, she was regularly being harassed on account of bringing less dowry in the marriage. When the victim became pregnant, they got her fetus aborted by giving medicines. The F.I.R. also alleges that her husband used to commit oral and carnal sex with her and on making protest, she was being beaten by him. When her husband went out of house, applicant Shivam entered into her room, bolted the door from inside and forcibly committed rape upon her and when she made a complaint about the said incident to her father-in-law and mother-in-law as well as to her husband, they said that you deserve for the same. 4-The main substratum of argument of learned counsel for the applicant is that the applicant is living along with his parents and their land was acquired by the Government for the purpose of constructing four lane and in lieu thereof, a sum of rupees four crores was given by the government as a land compensation, out of which a sum of rupees fifty lacs was deposited in the account of the applicant, therefore, the victim in order to get some share and to mount pressure upon the applicant, lodged the false first information report against the applicant making allegation of rape against him, whereas no such incident took place and there is no corroborative material on record in support of allegations levelled by the victim against the present applicant. Referring the statement under Section 164 Cr.P.C. of the victim, it is also pointed out that neither in the F.I.R. nor in the statement under Section 161 Cr.P.C. of the victim, there is any allegation of making carnal intercourse upon the victim by the applicant, but when her statement under Section 164 Cr.P.C. was recorded, she, in order to enhance the gravity of offence also made an improvement in her stand making allegation of carnal intercourse also, as such, the statement of the victim does not inspire confidence so far as the allegation of rape against the applicant is concerned. It is also pointed out that during investigation, husband of the victim had preferred a Criminal Misc. Writ Petition No. 101 of 2024 for quashing of the F.I.R. dated 16.12.2023, in which vide order dated 23.01.2024, the matter was referred to mediation. The other co-accused persons including the applicant have also filed separate Criminal Misc. Writ Petition No. 155 of 2024, in which interim protection was granted to them, but on account of excessive demand in mediation proceeding, the mediation between the parties concerned has failed and thereafter both the writ petitions have been dismissed. It is lastly submitted that the applicant is languishing in jail since 16.09.2024 having no criminal history to his credit. In case he is released on bail, he will not misuse the liberty of bail. 5-On the other hand learned A.G.A. as well as learned counsel appearing on behalf of the complainant opposed the prayer for bail of the applicant reiterating the prosecution case as mentioned in the F.I.R. but they do not dispute the other factum of the case as argued on behalf of the applicant. Learned counsel for the complainant referring the last portion of the charge-sheet pointed out that biological report is still awaited. She has also submitted that after lodging the F.I.R., accused Shivam and Shobhnath are extending threat to her, therefore, she has also lodged an F.I.R. on 30.01.2024 against them which was registered at Case Crime No. 31 of 2024, under Section 506 I.P.C. and the same is under investigation, therefore, bail application of the applicant is liable to be rejected. 6-Having heard the submissions of learned counsel for the parties and perusing the record, I find that after culmination of investigation, charge-sheet has been submitted in this case. During investigation, victim was given full opportunity of hearing, but she in her statement under Section 161 and 164 Cr.P.C. did not disclose the date and time of alleged incident of rape on her by the applicant. In the medical examination report dated 18.12.2023 also, no opinion of sexual violence has been given by the doctor and in pathological report dated 01.06.2024, no spermatozoa was seen in vaginal smear examination. The matrimonial dispute between the applicant and her husband is also admitted on record. The victim has also moved an application under Section 125 Cr.P.C. against her husband which is also pending. Hence considering the facts and circumstances of the case in totality, prima-facie this Court is of the view that no doubt in the matter of rape, statement of the victim is a primary consideration, but possibility of false implication of the applicant who is brother-in-law of the victim cannot be ruled out particularly in the situation where there is a matrimonial dispute between the victim and her husband, therefore, the applicant has made out a case for bail, but considering the contents of aforesaid first information report dated 30.01.2024 lodged by victim against the applicant and his father, under Section 506 I.P.C., this Court is of the view that applicant should be released on bail after recording statement of the victim before the trial Court. 7-Hence, the bail application is hereby allowed. 8-Let the applicant- Shivam Singh @ Shivam Kumar Singh, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable. (ii) That the applicant 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 ofÏcer or tamper with the evidence. (iii) That after his release, the applicant shall not involve in any criminal activity. (iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail. 9-In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant. 10-It is made clear that this order shall be effective after recording the statement (examination-in-chief and cross-examination) of the victim before the trial court. 11-The trial court shall frame charge against the applicant if the same has not already been framed within ten days' of presentation of this order before it and fix specific date for recording the statement of victim. The said date shall be communicated to the Superintendent of Police, Azamgarh. 12-On receiving the information from the trial court, Superintendent of Police, Azamgarh shall ensure the protection and production of victim on the date fixed before the trial court for recording her statement. 13-Copy of this order be sent to the concerned trial court as well as Superintendent of Police, Azamgarh within five days' for information and compliance. Order Date :- 23.1.2025 Saurabh SAURABH KUMAR High Court of Judicature at Allahabad