Thursday, March 23, 2023

Allahabad HC grants bail to gangrape accused, directs proceedings against victim for false evidence

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The Allahabad High Court has directed the trial court to initiate summary proceedings against the victim for giving false evidence as provided under Section 344 CrPC.

The Allahabad High Court has taken a serious view of the court encountering numerous cases where the victim has not supported the case of prosecution and taken a u-turn in the statement recorded during trial. The present case is also a case where a similar stand has been taken by the victim and has not supported the case of prosecution.

A single bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc Bail Application filed by Jannat @ Urvesh.

Applicant Jannat alias Urvesh has approached the Court by way of filing the Criminal Misc Bail Application under Section 439 CrPC after rejection of his Bail Application order dated 07.04.2022, passed by Additional District and Sessions Judge/ Special Judge (POCSO Act), Baghpat, in Case under Sections 476D(A), 328, 342, 120B, 506 IPC, 5G/6 of POCSO Act, 3/5 U.P Anti Conversion and Religion Act, 3(2)(va), 3(1)a of SC/ST Act, Police Station Baghpat, District Baghpat.

The counsel for the applicant as well as counsel appearing for victim have pointed out the subsequent events that, victim is presently residing with co-accused Shahzad as a married couple and a baby girl has also born and the applicant was alleged to be accused of gang rape of a girl who was less than 16 years on the date of occurrence, and the minimum sentence is 20 years imprisonment. On the basis of evidence given by the victim, other co-accused have been granted bail and, therefore, the applicant is also entitled for similar benefit.

“Considering the above submission and material on record, as the victim has not supported the case of prosecution during trial and other co-accused have been granted bail and also considering the role of applicant, I find it a fit case for grant of bail,” the Court observed while allowing the Bail Application.

The Court ordered that the applicant Jannat alias Urvesh 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) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide by the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C, may be issued and if applicant fails 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 I.P.C.

(v) The applicant shall remain present, in person, before the Trial Court on dates fixed and 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 and the Trial Court may proceed against him under Section 229-A IPC.

(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

It is also directed that compensation, if any, granted to the victim shall be recovered.

However, considering the stand of victim, the Bench directed the trial court to initiate summary proceedings against victim for giving false evidence as provided under Section 344 CrPC and in this regard it would be appropriate to quote the relevant part of a judgment passed by the Supreme Court in Hemudan Nanbha Gadhvi vs State of Gujarat, (2019) 17 SCC 523, as under:

“10. A criminal trial is but a quest for truth. The nature of inquiry and evidence required will depend on the facts of each case. The presumption of innocence will have to be balanced with the rights of the victim, and above all the societal interest for preservation of the Rule of law. Neither the Accused nor the victim can be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground for acquittal, as observed in Zahira Habibullah Sheikh v State of Gujarat, (2006) 3 SCC 374 and Mahila Vinod Kumari v State of Madhya Pradesh, (2008) 8 SCC 34. If the medical evidence had not confirmed sexual assault on the prosecutrix, the T.I.P and identification therein were doubtful, corroborative evidence was not available, entirely different considerations may have arisen.

  1. It would indeed be a travesty of justice in the peculiar facts of the present case if the Appellant were to be acquitted merely because the prosecutrix turned hostile and failed to identify the Appellant in the dock, in view of the other overwhelming evidence available. In Iqbal v State of U.P, 2015 (6) SCC 623, it was observed as follows: “
  2. Evidence of identification of the miscreants in the test identification parade is not substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the Accused with the crime, like recovery of articles which are the subject matter of dacoity and the alleged weapons used in the commission of the offence.” (emphasis added)
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