The Allahabad High Court has granted bail to a gang-rape accused while directing the Director General of Police, Uttar Pradesh to issue necessary direction in relation to the preparation of true site plan/map with dimensions by the Investigating Officer in the correct manner and ensure that a photograph is taken of the spot and annexed with site plan, as every Investigating Officer has a smart phone nowadays.
A single-judge Bench of Justice Rajeev Singh passed this order while hearing a Criminal Misc Bail Application filed by Ram Audhi @ Sudhir Kumar.
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The bail application has been filed on behalf of the applicant in Case under Sections 376- D, 377, 506 IPC and Section 3/4, 5 G of the POCSO Act, Police Station Khiri, District Khiri, with the prayer to enlarge him on bail.
The counsel for the applicant submitted that due to panchayat election, the applicant was falsely implicated on behest of Ambrish and father of the prosecutrix.
He further submitted that the father of the prosecutrix is habitual of using the prosecutrix and her sister as a tool and earlier FIR as case under Sections 363, 366, 368, 376 IPC, Police Station-Kheri District Khiri was lodged by the sister of the prosecutrix against other villagers and thereafter she entered into compromise and the final report was submitted by the Investigating Officer.
He also submitted that as per prosecution version, the prosecutrix is aged about 20 years and on October 28, 2019 at about 10:00 a.m she went to field of paddy crop and then applicant and other co-accused persons came there and caught her hand and started dragging the prosecutrix and at the same time, the brother of prosecutrix reached the spot and all the accused persons ran away.
Counsel for the applicant said that the FIR was lodged on October 28, 2019 at 18:51 hours after eight hours about the incident. Prosecutrix was medically examined and her statements under Sections 161 Cr.P.C and 164 Cr.P.C were also recorded in which she developed a case of rape against the accused persons and the applicant. The statement of the brother of the prosecutrix was also recorded in which he stated that he went to take sugar cane leaves and after hearing the crying of her sister he reached on the spot and saw that accused persons including the applicant were committing rape with the prosecutrix and after seeing him they ran away by giving life threat, but medico legal report of the prosecutrix does not support the oral testimony of the prosecutrix, as she stated that gang rape was committed with her.
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The counsel for the applicant further said in the counter affidavit criminal history of five cases has been shown against the applicant and out of five cases, the applicant has been acquitted in three cases and this fact has been mentioned in the rejoinder affidavit.
The applicant has been in jail since December 2, 2019 and till today trial has not been concluded while as per Section 35 of the POCSO Act the trial court shall record the statement of the victim within one month and trial shall be concluded within one year. Therefore, the applicant is entitled for bail. In case of being enlarged on bail, he will not misuse the liberty of bail.
AGA has opposed the prayer for grant of bail to the applicant but he has not disputed the fact that there is contradiction in the contents of the FIR and the statement of the victim recorded under Section 161 Cr.P.C and 164 Cr.P.C. He also submitted that FIR is in encyclopedia, as allegation of rape has been made against the applicant and other co-accused persons.
“Considering the rival submissions of the counsel for parties, considering the contents of the FIR and the statement of the brother of the informant as well as medico legal report of the prosecutrix and without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail,” the Court observed.
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The Court ordered,
Let applicant – Ram Audhi @ Sudhir Kumar be released on bail in aforesaid Case Crime, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
Any violation of above conditions will be treated as misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
On perusal of the case diary provided by the AGA it appears that site plan is prepared by the Investigating Officer in a most cursory manner, as it is duty of the Investigating Officer to take all precautions to prepare true site plan with dimensions during the course of the investigation and it is obligatory to show distance from one point to other, the Court further observed.
The Court directed the Director General of Police, U.P to issue necessary direction in relation to the preparation of true site plan/map with dimensions by the Investigating Officer in the correct manner and also ensure for taking photograph of the spot and annexed with site plan, as nowadays every Investigating Officer is having smart phone.