Bachchu Singh vs State of U.P. and Others

Y.K. Sangal, J.—This is an application for cancellation of the bail order dated 7.8.2008, passed by the District and Sessions Judge, Mathura in Case Crime No. 238 of 2008 under Sections 376 and 511, I.P.C., relating to P.S. Naujhil, district Mathura.

Heard learned Counsel for the applicant, learned A.G.A. for the State and perused the record.

As per affidavit annexed with the application, on 19.7.2008 Respondent Nos. 2 to 4 have committed gang rape with prosecutrix, wife of Kamal and daughter-in-law of the informant and after committing the gang-rape accused persons have administered poison to the prosecutrix with an intention to kill her, resulted she became unconscious and she was taken to Naujhil Hospital but Doctor referred for treatment to Swarn Jayanti Community Hospital, Mathura where she was admitted on the same day and remained hospitalised up to 21.7.2008 and when she recovered only then she was discharged from the hospital and told to the informant that the accused persons have committed gang-rape with her and administered poison to her then the report was lodged at P.S. by the informant on 21.7.2008 at 11.30 p.m. and case was registered against the accused persons under Sections 376 and 328, I.P.C. Statement of the victim was also recorded u/s 164, Code of Criminal Procedure and statement of other witnesses were also recorded u/s 161, Code of Criminal Procedure. They have corroborated the case of the first information report.

Accused persons moved application for bail before the Magistrate but the same was rejected then accused persons applied for bail before the Sessions Judge, Mathura. It was argued that he wrongly and illegally without looking into the facts and circumstances of the case, granted bail to the accused persons Respondent Nos. 2 to 4 saying that only case under Sections 376 and 511, I.P.C. is reported in the matter by the Investigating Officer. Learned Sessions Judge has wrongly observed that real brothers and nephew cannot commit gang-rape simultaneously and there is delay in lodging the first information report. It was further stated that after enlargement on bail, Respondent Nos. 2 to 4 have threatened the prosecutrix to withdraw the case and they have also threatened to the informant for the same purpose and they have misused the liberty of the bail.

Counter-affidavit was filed on behalf of the accused Respondent Nos. 2 to 4 denying the case of the application and it was averred that father of the Respondent Nos. 2 to 4 have made a complaint to the S.S.P., Mathura on 28.3.2003 that Bachhu Singh, informant of the present case wants to fabricate case against them and want to implicate the family members in a false case due to inimical terms between them. This case is a counter blast of the same application and no such offence as said in the first information report of the present case has taken place. A false story has been cooked up. Witnesses/neighbourours have also not supported the case of the first information report. Injury report also not corroborated by the version of the informant/prosecutrix and the first information report. There is inordinate delay in lodging the first information report. After preparation of the charge-sheet, statement u/s 164, Code of Criminal Procedure was got recorded on 5.9.2008. An information was made by the Doctor to police that she was examined by him in the hospital and Doctor has also informed the police after her examination that she was admitted in the hospital for treatment in a case of administering to her poison and she was complaining pain in her abdomen. Complaint of rape was not reported by the Doctor. There is no illegality, invalidity and impropriety in the bail order passed by the learned Sessions Judge and he has applied his discretion in granting the bail. The averments regarding threatening after releasing on bail by the accused persons are vague and only made with an intention to give colour to the case. No specific date, time and place for threatening has been disclosed and authorities are never informed about such threatening.

Undisputed facts of the case are that the occurrence was of dated 19.7.2008 while the information to police was given on 21.7.2008. There is delay in lodging the first information report. It is also not disputed on behalf of the State by learned A.G.A. and the counsel for informant that after investigation charge-sheet was submitted by the police for the offence under Sections 376 and 511, I.P.C. and no case of gang-rape was found by the Investigating Officer. Copy of the injury reports are also available on record which shows that no injury was found by the Doctor on the body of prosecutrix on any part of the body including her private part and no definite opinion about the rape was given by the Doctor. Statement of prosecutrix u/s 164, Code of Criminal Procedure was recorded on 5.9.2008, although the charge-sheet was prepared by the Investigating Officer on 7.8.2009. No explanation was given on behalf of the prosecution why there is inordinate delay in recording the statement u/s 164, Code of Criminal Procedure As per case of the affidavit annexed with the bail cancellation application, when the prosecutrix was discharged from the hospital only then she has narrated about the occurrence to the informant. She was not unconscious when she was taken to both the hospitals. Learned Counsel for the Respondent Nos. 2 to 4 argued that if any such offence of rape would have been committed with her she will not tell these facts to her father-in-law and husband immediately when they have taken her to the hospital, it is not probable. Alongwith the counter-affidavit a report of Swarn Jayanti Samudaik Hospital was filed on behalf of the Respondent Nos. 2 to 4 (page 18) showing that the lady was admitted in the hospital only for treatment of administering poison to her at her house. Nowhere has she stated to the Doctor that rape has been committed with her.

Learned Counsel for the Respondent Nos. 2 to 4 has also drawn my attention on the statement of the other witnesses recorded by the Investigating Officer during the course of investigation where they have stated that she had consumed poison herself at her in-laws house. Learned Counsel for the Respondent Nos. 2 to 4 also argued that no injury was found on the body of the prosecutrix which also belies the story of gang-rape with her in the field of crop of bazra where alleged rape said committed by the three accused persons on the rough surface, i.e., on earth. Learned Counsel for the Respondent Nos. 2 to 4 further argued that if three persons would have committed rape with her no mark of injury, either abrasion or contusion will be there on her body, it is neither probable nor believable. It was further said that Investigating Officer has inspected the spot but he has not found any sign of offence there.

Considering the arguments of the parties and facts and circumstances of the case and giving detail and sufficient reason and applying his discretion, learned Sessions Judge has granted bail to the accused persons. Case under Sections 376 and 511, I.P.C. also triable by the Court of Sessions Judge. Learned Sessions Judge is empowered to grant bail, even in case u/s 376, I.P.C.

In paragraph Nos. 11 and 12 of the affidavit annexed with the bail cancellation application general allegations about tampering the evidence and threatening to prosecutrix and complainant are made. No specific date, time and place of such tampering and threatening has been given. No application to authority in this regard has been moved and no first information report was lodged in this regard. No illegality, invalidity and impropriety shown in the impugned order. Charge-sheet was also submitted for the offence under Sections 376 and 511, I.P.C. only. It is open for the informant/prosecution that if evidence for the offence of gang-rape is brought on record during the trial, they may apply for amendment in the charge in this regard and if sufficient evidence is made available on the record, the accused persons may be convicted for the gang-rape. Only on this ground that offence is of heinous and serious nature, bail can be refused but it cannot be cancelled under the provisions of law. The material consideration for cancelling the bail is whether accused will not be available for the trial and whether he is likely to abuse the discretion granted in his favour about releasing him on bail by tampering the evidence. Only vague allegations in this regard has been made in the affidavit on behalf of the informant. The Apex Court in Bhagirathsinh Judeja Vs. State of Gujarat, , had laid docn the following principle:

The power of revoking an order of bail is a very serious one. Very cogent, overwhelming circumstances are necessary for order seeking the cancellation of bail. The power is not to be exercised as if punishment before trial is being imposed.

Learned Sessions Judge having exercised his discretion and on the basis of police record granted the bail to the Respondent Nos. 2 to 4. No new material pointed to the guilt to the accused stated discovered. In the circumstances, impugned bail order cannot be lightly interfered at this stage. It is well-settled law that in cancelling the bail Court has to take the following circumstances in consideration:

(1) Accused was found tampering with the evidence, either during the investigation or during the trial.

(2) When the person on bail commits similar offence or any heinous offence during the period of bail.

(3) When the accused is absconder and trial of the case gets delayed on that account.

(4) When the offence committed by the accused that had created serious law and order problem in the society and accused had become a hazard on the peaceful living of the people.

(5) The High Court or the Sessions Judge found that the accused has misused the privilege of bail.

(6) If the life of the accused itself is in danger.

Nothing was shown from the above on behalf of the applicant''s counsel to cancel the bail of Respondent Nos. 2 to 4 in the present case.

From the above all discussions and law laid down by the Apex Court and considering the facts the circumstances of the case and also taking into consideration of the documents of both the parties; counsel, I am of the view that there is no sufficient ground to cancel the bail of the accused persons granted by the Sessions Judge by the impugned order. Application has no force and it is accordingly, dismissed.