HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 17.01.2020
Delivered On:- 13.02.2020
Case :- Criminal Misc. Bail Application No. 54650 of 2019
Applicant :- Mukhtar Ahmad
Opposite Party :- State Of U.P.And Another
Counsel for Applicant :- Pankaj Misra
Counsel for Opposite Party :- G.A.,Anil Kumar Singh
Hon’ble Siddharth, J.
1. Heard Sri Viresh Mishra, learned Senior Advocate assisted by Sri Pankaj Misra, learned counsels for the applicant, Sri Anil Kumar Singh, learned counsel for the opposite party No. 2 and learned A.G.A for the State, opposite party no. 1.
2. Opposite party no. 2 lodged an FIR on 30.04.2018 against four persons, namely, Mohd. Sajid @ Sonu, Himanshu Pandey @ Nanke, Alok Kumar Pandey and Somain, alleging that on 26.04.2018 when his minor daughter and prosecutrix was blooming her house the accused person enticed her away in a four wheeler.
3. The learned Senior Counsel for the applicant has submitted, on the basis of pleadings in affidavit in support of bail application, that a bare perusal of the FIR shows that the alleged incident took place on 26.04.2018 and FIR was lodged on 30.04.2018 wherein applicant was not named. The prosecutrix herself came back to her house on 04.05.2018 and her statement under Section 161 Cr.P.C was recorded by the police and its videography was also done. In her statement under Section 161 Cr.P.C she stated that she has passed her intermediate examination. On 23.04.2018 Sonu son of Mohd. Rashid of her village along with another person entered her house on 23.04.2018 at about 02:00 p.m when all the family members were sleeping and she was abducted by them. She raised alarm but no one heard it and she was abducted in a four wheeler and taken to some unknown place. She was unconscious and when she regained consciousness she was in a closed room. One day an accused, left his mobile in the room and the prosecutrix made a phone call to her father and thereafter to one Javed. She informed her father and Javed that she is in Ghazipur. Javed reached there with two persons and thereafter the accused left her and ran away. When she was accompanying Javed he saw police and ran away. The prosecutrix was brought to Police Station- Nawabganj and from there to her father by lady constable, Poonam Verma on 04.05.2018. She was medically examined on 05.05.2018 at 12:51 p.m and she stated before the doctor that she was abducted by Sonu, Somain and Irshad and taken in a car. They intoxicated her and raped her one by one. On 04.05.2018 they left her at allahabad and said told her that tell that she was taken to Ghazipur. On 07.05.2018 the statement of prosecutrix has been recorded by the Magistrate wherein she implicated the applicant and Chunnu and Shailendra along with the named accuseds, Somain, Irshad and Sonu.
4. Between 04.05.2018 and 07.05.2018 statements of prosecutrix were recorded thrice. Firstly, under Section 161 Cr.P.C then before the doctor and then under Section 161 Cr.P.C and all the statements were at variance. The opposite party no. 2 and the prosecutrix are unreliable persons. Her age in high school certificate is 31.01.2001, in Aadhar card and Passport it is 01.01.2001 and in her medical examined by the doctor her age has been found to be 19 years. Mother of the co-accused, Sonu @ Sajid, Razia Bano, works as a maid servant in the house of opposite party no. 2 for last more than 15 years and co-accused, Sajid @ Sonu visits the house of opposite party no. 2 since his childhood with his mother. He had affair with the prosecutrix and this fact has been admitted by Sonu @ Sajid in his statement recorded by the police under Section 161 Cr.P.C. In the pathology report of the prosecutrix dated 08.05.2018 she was found to be pregnant but this fact has been concealed in the investigation. Her statement under Section 164 Cr.P.C is not reliable wherein she has alleged that she was bruttaly beaten for three days and brutally raped but in her medical examination no physical or genital injury whatsoever was found by the doctor. The medical report is in total contradiction to the statement of the prosecutrix under Section 164 Cr.P.C. As per the medical examination report of the victim she is aged about 19 years and therefore the implication of applicant under Section 5/6 of POCSO Act is illegal. Real nephew of opposite party no. 2, namely, Mohd. Noman, is resident of the same village and is alleged to be the eye-witness of incident but his statement under Section 161 Cr.P.C was recorded by Investigating Officer after two months of the incident on 24.07.2018.
5. In 1998 in the Nagar Panchayat election of Lal Gopalganj the applicant and the wife of opposite party no. 2, namely, Munni, contested the election for member in which inspite of vehement opposition by Munni the applicant was elected as Deputy Chairman, Nagar Panchayat, Lal Gopalganj. In the year 2012 the post of Chairman of Nagar Panchayat, Lal Gopalganj, was reserved for women candidate on which the wife of the applicant, namely, Zulekha Begam and sister-in-law of the opposite party no. 2 (Bhabhi) contested the election in which again Zulekha Begam won the election and became Chairman of Nagar Panchayat, Lal Gopalganj.
6. Sometimes in 2015 nephew of opposite party no. 2, namely, Noman, S/o, Late Afsar Husain, was allotted Patta for fisheries on Gata No. 819 measuring 32 Bigha, 10 Biswa, Mauza Nindarwa, Tehsil Soraon, District- Allahabad for a period of 10 years for the sum of Rs. 53,00,789/- and he was required to deposit Rs. 5,30,0788/- as annual instalment but he failed to deposit timely instalment. In 2017 election both the applicant and nephew of opposite party no. 2, namely, Noman, S/o Afsar Husain, contested the election for the post of Chairman, Nagar Panchayat, Lal Gopalganj in which the applicant won the election and declared winning candidate. As stated earlier that the nephew of the opposite party no. 2, Noman, failed to deposit annual installment of fisheries pond lease rent and therefore, the wife of the applicant and the applicant after election Chairman issued various notices to Noman for depositing of annual installment of lease rent otherwise his lease deed of fisheries pond will be cancelled.
7. Both, the opposite party no. 2 and his nephew, Noman, are notorious persons of the Nagar Pancyayat; they have illegally acquired several properties of Nagar Panchayat. In this connection the opposite party no. 2 has illegally encroached upon Arazi No. 1208 measuring about 1200 sq. meter on which the opposite party no. 2 has constructed two very big permanent shops. The nephew of opposite party no. 2, namely, Noman, has unauthorizedly occupied Gata No. 1433 and 1415 recorded Banjar land and has established a brick kiln. For running brick kiln he has obtained registration from District- Pratapgarh whereas the land is situated within District- Allahabad. Opposite party no. 2 is a man of criminal nature and criminal antecedents and a criminal case being Case Crime No. 8 of 2007, under Sections 302/201 IPC, was registered against him at Police Station- Hathigawan, District- Pratapgarh, for murder of his real brother. Another registered against him is Case Crime No. 110 of 2016, under Sections- 323, 325, 504 and 506 IPC. The applicant is innocent and has been falsely dragged in the alleged offence due to political rivalry which would be clear from the above facts.
8. Sri Anil Kumar Singh, learned counsel appearing on behalf of opposite party no. 2, has filed a counter affidavit but has not specifically controverted the averments made in the affidavit in support of bail application by stating any reasons. He has only made bland denial of the averments which is not supported by any reason for the same.
9. His submission is that the applicant was absconding for a long time and a Criminal Misc. Writ Petition No. 11548 of 2018 was filed before this court wherein this court directed the S.S.P to ensure that all the persons named by the prosecutrix in her statement under Section 164 Cr.P.C are arrested. Thereafter another Criminal Misc. Writ Petition No. 20194 of 2019 was filed before the court and direction dated 01.08.2019 was issued to the S.S.P. Allahabad to ensure the arrest of the applicant. On 05.11.2019 this court directed to S.S.P., Allahabad to ensure security of the prosecutrix and learned A.G.A was directed to obtain instructions whether the applicant has been removed from the post or not. After the charge sheet was submitted by the Investigating Officer the applicant approached this court praying for quashing of the charge sheet by filing an Application u/s No. 32026 of 2018 which was dismissed by this court on 18.09.2018 with the finding that the applicant has been named by the prosecutrix in her statement under Section 164 Cr.P.C and it cannot be said that no offence is made out against the applicant. Thereafter opposite party no. 2 filed another Application u/s 482 No. 47536 of 2018 which was disposed of directing the court below to conclude the trial of the case as expeditiously possible, preferably within a period of one year from the date of production of certified copy of this order. Athar Husain, P.W-1, has only been examined before the trial court. From the statement of the prosecutrix under Section 164 Cr.P.C it is clear that the applicant and co-accused persons directed the prosecutrix to demand of Rs. 30,00,000/- from her father and when she refused she was brutally beaten and subjected to gang rape. She was taken to many places. She cannot tell the names of the places where she was taken by them.
10. Counsel for the informant has further submitted that the prosecutrix has made an application dated 26.05.2018 before the Director General of Police, Lucknow and Additional Director General of Police, Law Order, U.P. Police, Lucknow stating that Section ¾ POCSO Act, Sections 364-A and 376-D IPC should be added in the Case Crime No. 172 of 2018 and instead of S.P. (Gangapar) the S.S.P., Allahabad should be directed to investigate this case. The direction of the Apex Court in the case of Kailash Satyarthi vs. Union of India, Menka Gandhi Case and State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and others, AIR 2010 SC 1476 have not been complied. The applicant has long criminal history. The prosecutrix was not pregnant as clear from her medical report and was menstruating at the time of medical examination. He has relied upon the judgment of this court in the case of Unnao gang rape victim and two judgment of the Apex Court regarding violence against women. Finally he has placed the order dated 04.09.2019 passed in Criminal Misc. Bail Application No. 14453 of 2019 whereby bail application of co-accused, Chunnu Pandey, has been rejected by this court.
11. Learned A.G.A has opposed the prayer for grant of bail to the applicant but could not point out anything material to the contrary.
12. After considering the rival submissions this court finds that initially the applicant was not named in the FIR. One eye-witness, Noman, has stated that the applicant was siting in the four wheeler when Mohd. Sajid @ Sonu, Somain and Irshad alighted from the vehicle and abducted the prosecutrix. His statement has been recorded on 24.07.2018 as stated in paragraph 14 of the affidavit in support of the bail application. In counter affidavit filed by opposite party no. 2 contents of paragraph 14 have been denied but it has not been stated as to when the aforesaid statement was recorded. Therefore it appears that this statement was recorded belatedly only to make out a corroborative material for the statement of the prosecutrix under Section 164 Cr.P.C. The Apex Court in the case of Balakrushna Swain vs. State of Oddisa, 1971 Cri.LJ 670 held that unexplained long delay on the part of Investigating Officer in recording statement of material eye-witness will render evidence of such witness unreliable. In a case under Section 376 IPC the delay of three days in examination of prosecutrix under Section 161 Cr.P.C was considered fatal for prosecution case by the Apex Court in the case of Jagjeet Singh @ Jagga vs. State of Punjab, (2005) 3SCC 689. It was held that non-explanation of such delay in recording of statement of the prosecutrix cannot be sustained when her medical condition was good. In the case of Harbeer Singh vs. Sheesh Pal and Others, (2016) 16 SCC 418 the Apex Court held that the delay will not necessarily discredit the testimony of witness but there should be explanation for the same. When such witness was available and was not examined by the Investigating Officer, it will cast doubt on the prosecution case.
13. In the present case there is no explanation on record explaining the delay in recording the statement of Mohd. Noman under section 161 Cr.P.C after two months when he is closely related as nephew of the informant and resident of the same village. He claims himself to be the eye-witness of the act of abduction of the prosecutrix but his statement was not promptly recorded by the Investigating Officer. At the present stage such a statement cannot be considered to be free from doubt and has no corroborative value of the statement of the victim under section 164 Cr.P.C., so far as the case of the applicant is concerned.
14. The medical report of the prosecutrix does not corroborates her statement made under section 164 Cr.P.C. The doctor has not found any injury on her body and genitals when she has alleged repeated gang rape by six men and also brutal beating by them when she refused to ask her father to pay Rs. 30 lakhs to them. Her statement under Section 161 Cr.P.C and before the doctor does not implicates the applicant at all.
15. At the present stage, except the statement of the prosecutrix under Section 164 Cr.P.C., which is clearly an improvement over her statement under Section 161 Cr.P.C and her statement before the doctor implicating only three named accuseds, there is no other material before this court against the applicant. Keeping in view the enmity between the applicant and informant opposite party no. 2 clearly averred in paragraph 18, 19, 20, 21, 22, 23 and 24 of the affidavit in support of the bail application, the false implication of the applicant cannot be ruled out. In the counter affidavit filed by the informant no specific reply and reason for denial has been given in paragraph 8 of the counter affidavit. In the absence of any reasoned reply to the averments made on behalf of applicant, this court has no option but to accept the plea that the applicant has been roped in because of enmity of election politics with family members of opposite party no. 2. At the time of implication he was Chairman of Nagar Panchayat, Lal Gopalganj and it has clearly been averred in paragraph 21 of the affidavit in support of bail application that Mohd. Noman, real nephew of informant-opposite party no. 2, lost the election against the applicant in the year 2017. This can be the reason of recording of statement of Mohd. Noman by the investigating officer after two months of the incident, implicating the applicant by supporting the statement of the prosecutrix recorded under Section 164 Cr.P.C. The other causes of enmity of the applicant with Noman with regard fishery lease and unauthorized occupation of banjar land averred in paragraph nos. 22 and 24 of the affidavit, which are unrebutted, can also be cause of false implication on the applicant.
16. The reliance of the counsel for the informant-opposite party no. 2 on the case laws of the Apex Court has no factual foundation for application to this case. The ratio of the judgments cited cannot be applied to the present case when the factual position of this case is different. The cause of concern of the Apex Court regarding the crime against the women and the children in the judgment cited by the counsel for the informant-opposite party no. 2 are not disputed but in the present case no such violation appear to have taken place.
17. The applicant although is guilty of avoiding surrender before the court as soon as he was implicated and the prosecutrix and the opposite party no. 2 had to approach this court for his arrest, but his bail cannot be denied only on this ground when the prosecution case does not inspires confidence at this tage. He is in jail since 06.08.2019 soon after the direction dated 01.08.2019 passed in Criminal Misc. Writ Petition No. 20194 of 2019 for his arrest. The age of the applicant is 58 years and it does not appears credible that he will indulge in such crime with young body like, Mohd. Sajid @ Sonu, with whom the affair of the prosecutrix was alleged. The trial court has not been able to conclude the trial despite order dated 16.01.2019 of this court passed in Application u/s 482 No. 47536 of 2018. The trial is not likely to be concluded in near future.
18. The rejection of the bail application of the co-accused, Chunnu Pandey, by this court will not affect the merits of this bail application. From the perusal of the order dated 04.09.2019, rejecting his bail application, it appears that he had no enmity with the opposite party as in the present case. The cause of implication of applicant may be different as the full facts are not clear, on account of evasive reply given in the counter affidavit.
19. Considering the facts and circumstances of the case as also the rival submissions noticed above, without commenting upon merits of the case, I am of the opinion that the applicant is entitled to be released on bail.
20. Let the applicant- Mukhtar Ahmad, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
21. The bail application is allowed.
Order date:- 13.02.2020