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Allahabad HC grants bail to 3 men accused of burning a rape victim to death in Unnao

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The Lucknow bench of the Allahabad High Court has granted bail to three men accused of burning a rape victim to death in Unnao in 2019.

A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Umesh Kumar Bajpai and other bail applications.

The bail applications under Section 439 CrPC have been filed seeking bail in FIR registered under Sections 326, 506, 302, 147, 324, 342/34 IPC, Police Station Bihar, District Unnao.

In the FIR, it has been alleged that the complainant’s sister case was being tried in Raebareli. The victim was to travel on the date of incident by train at 4 am to Raebareli from her residence in Unnao.

The complainant suspected that his sister was set on fire in the morning of the date of incident i.e 05.12.2019 while she was going to catch train at 4 am by Shubham and Shivam, against whom a case was pending in Raebareli court for which the deceased was to travel by train.

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The FIR in question came to be registered against accused Shubham and Shivam on the same day i.e 05.12.2019 at 12:42 hours under Sections 307, 326 and 506 IPC.

The statement of the complainant, Anil, was recorded under Section 161 CrPC in which he made allegations against five persons, Shivam Trivedi, Shubham, Harishankar Trivedi, Ram Kishore and Umesh Kumar.

During the course of investigation, the Investigating Officer recorded the statements of Ravindra Prakash, Shivkaran Lodhi, Nepal Yadav @ Nanhkau, Phoolmati Lodhi, Roshni Lodh and Seeta Jaiswal. According to the prosecution case, all the aforesaid 5 accused were arrested by the police on the same day from their houses on 05.12.2019 itself, and since then, they have been in jail.

As per the prosecution, the statement of the victim was recorded on 05.12.2019 by SDM Bighapur, Unnao. In the alleged statement, the prosecutrix said that on 05.12.2019 at around 4 AM she came out of her house to catch the train from Railway Station, Baiswara Bihar.

As soon as she reached Gaura turn, the accused-applicants, accused Shivam Trivedi and, Shubham Trivedi, present there, surrounded her and hit her on her head with a danda and assaulted her by knife on her neck, and thereafter they sprinkled petrol and set her on fire.

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It is said that on noticing that she was being set on fire, somebody called the police and then police from Bihar police station reached there. She was taken to Primary Health Centre, Sumerpur.

It was said that on 12.12.2018, accused-Shubham Trivedi, Shivam Trivedi had raped the prosecutrix for which a case was registered at Lalganj Police station and she was going to pursue the said case pending at Raebareli court.

After perusing the alleged statement of victim, the FIR was converted under Sections 147, 307, 326, 342, 323, 506/34 I.P.C. The victim was shifted to Safdarjung Hospital, New Delhi on 06.12.2019 where she died on the same day i.e 06.12.2019 at 11:40 PM and the case was converted under Sections 302, 147, 342, 324, 326, 506/34 IPC.

The counsel for the accused submitted that the prosecution story is palpably false and it is nothing but a concoction to implicate innocent people. The accused have been victims of a media trial. He submitted that the deceased in her alleged dying declaration had said that she was assaulted on her head by danda and on neck by knife but post-mortem report would totally belie the said allegation.

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It has been further submitted by counsel for the accused applicants that no injury was found on the head and neck of the deceased. According to the opinion of the doctor, who performed the autopsy, the cause of death was shock as a result of ante-mortem thermal flame burn injuries.

He has further submitted that in a case registered under Sections 376D, 506 IPC at Police Station Lalganj, District Raebareli in FIR against accused-Shivam Trivedi and Shubham Trivedi. Accused-Shivam Trivedi was enlarged on bail by order dated 25.11.2019.

Counsel for the accused-applicants said that on 05.12.2019, no case was pending in the Court against accused-Shubham Trivedi and Shivam Trivedi for which allegedly the victim had to travel on 05.12.2019 at 4-5:00 A.M in the morning that too all alone. He has further submitted that on the said date even charge-sheet was not filed against accused-Shivam Trivedi and therefore, the prosecution story set up by the complainant is completely false.

Counsel for the accused-applicants has further submitted that the deceased was putting pressure to perform marriage with accused-Shivam Trivedi but when it could get materialized, on the pressure of the family members an F.I.R came to be registered against two cousins, Shubham and Shivam Trivedi and then on the instigation of lawyer, Mahendra Singh Rathore, she in order to put pressure on the accused-Shivam and his family, set herself on fire.

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It has been further submitted by the counsel for the accused applicants that it would be highly improbable that the deceased would go all alone walking for more than 2 km to catch a train at 4:00 A.M to Raebareli to pursue a case, which was not pending in any of the Courts of Raebareli. No reasonable man would believe in the story set up by the prosecution that the accused, who are father and sons and close relations, would know that the deceased would be going to Raebareli at a particular time and they would surround her and commit the crime as alleged.

It has been further submitted by the counsel for the accused applicants that this may be a case of an act of the victim with broken heart but the accused have been falsely implicated in such a serious offence because of media trial, and they have suffered immensely. Their careers, reputations and families have been destroyed in a false case fostered against them.

Counsel for the accused-applicants further said that the complainant had said that all five accused had raped the deceased which would also not be possible that the father and sons would commit rape on the victim together. He, therefore, submits that the accused-applicants are entitled to be enlarged on bail.

It is true that the said incident received huge media attention and the complainant and his family received more than adequate financial aid from the Government. If an accused has committed an offence, he must be punished adequately under the provisions of the law, but merely if a case has received publicity and media attention, a person should not be made to suffer unless he is actually guilty for committing the crime, the Court said.

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The State, in its counter affidavit, has not denied the fact of not receiving any injuries except for burn injuries by the deceased. The State has also not denied the fact that there was no case pending in any court in Raebareli against the accused-Shubham Trivedi and Shivam Trivedi for which the deceased had allegedly gone in the morning of the date of the incident i.e 05.12.2019 to catch the train. The State has also not denied the fact that on the said date, the train by which the deceased had to take journey was cancelled and it remained cancelled from 03.12.2019 and that even on the said date charge-sheet was not submitted against the accused-Shivam Trivedi and Shubham Trivedi, the Court noted.

“Considering the facts and circumstances of the case and also the fact that the accused-applicants have been in jail since 05.12.2019, and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail”

-the Court observed.

The Court ordered that,

Let applicants Umesh Kumar Bajpai, Ram Kishor Trivedi and Hari Shankar Trivedi @ Chhuna be released on bail in the aforesaid case on their furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-

(i) The applicants shall file an undertaking to the effect that they 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.

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(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.

(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their 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 them, in accordance with law, under Section 174- A of the Indian Penal Code.

(iv) The applicants 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 applicants 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 them in accordance with law.

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