Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 1337 (ALL)

Buddhu v. State of U. P.

2019-05-15

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : Karuna Nand Bajpayee, J. 1. This second bail application has been filed seeking the release of the applicant on bail in Case No. 15 of 2015, State v. Buddhu alias Guddu alias Dharmendra arising out of Case Crime No. 185 of 2013, under Sections 363, 366, 376 (1), I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, Police Station Paschim Sharira, District Kaushambi. First bail application has been rejected vide order dated 9.11.2016 by this Court on merits. 2. It has been submitted by the learned counsel for the applicant that already seven witnesses have been examined and the trial is at the advance stage. The applicant is in jail since-15.9.2013 and on the ground of detention the applicant may be enlarged on bail. 3. Heard the learned A.G.A. who has opposed the" prayer for bail. Perused the record. 4. This is the second bail application and the first bail application was rejected by this Court primarily for the reason that the trial has already started and the witnesses were being examined and the court was of the view that it is for the trial court to pronounce the final verdict about the guilt or innocence of the accused on the basis of evidence adduced in the trial and any finding by this Court on-the basis of evidence adduced in the trial may cause prejudice to either side. While pressing the second bail application learned counsel for the applicant has drawn the attention of this Court to a very exceptional situation. It was pointed out that the applicant being very poor person there was nobody to defend him privately in the case. In that view of the matter, some Amicus Curiae was appointed by the trial court. But out of seven prosecution witnesses that have been examined six have gone uncross-examined simply for the reason of the absence of the Amicus Curiae who did not take care even to turn up in the court. This Court has perused the record and finds this submission to be correct. Contention is that in such a situation though the accused is being tried but he is remaining undefended all throughout. This is not only a violation of the constitutional rights of the citizen but is also a sad commentary upon non-participative insensitive attitude of the court. This Court has perused the record and finds this submission to be correct. Contention is that in such a situation though the accused is being tried but he is remaining undefended all throughout. This is not only a violation of the constitutional rights of the citizen but is also a sad commentary upon non-participative insensitive attitude of the court. If Amicus Curiae was not appearing to cross-examine the witnesses there was no reason not to appoint another Amicus Curiae. It is not a petty offence and the punishment in the case could be imprisonment for life. This Court has reason to hold that the situation as is apparent from the record shows that it has not been a fair trial at all and not only the principles of natural justice have been violated but the most valuable right of the accused to have legal assistance and not to remain undefended, have also been woefully ignored to his utter detriment. For this background of the case as it is, this Court, has no option but to look into the merits of the case itself. 5. Perusal of the F.I.R. shows that the victim was alleged to be of about 18 years of age and it was said that the accused had enticed her away. The most conspicuous feature admitted and shown in the F.I.R. is to the effect that she had taken away Rs. 30,000 cash and a lot of jewelleries from the house while going away. It is a very strong pointer to demonstrate the willingness of the victim while leaving the house on her own volition with full deliberation. The medical examination of the victim shows no mark of injuries present. No alive or dead spermatozoa was found in the pathological examination. No definite opinion about rape could be given by the doctor. The statement of the victim shows that before she was taken by the accused with him the marriage was proposed by him. Though the allegation has been made by the victim that she was taken away by force but such allegation stands contradicted by the very fact of taking away so much cash and jewellery alongwith her as has been alleged in the F.I.R. and also admitted in the statement of first informant P.W. 3. Though the allegation has been made by the victim that she was taken away by force but such allegation stands contradicted by the very fact of taking away so much cash and jewellery alongwith her as has been alleged in the F.I.R. and also admitted in the statement of first informant P.W. 3. She had been travelling quite a long distance alongwith the accused up to Kanpur but there is hardly any convincing evidence to suggest that she was at all a resisting party during her journey. P.W. 3 is the first informant but he was admittedly not present in the house on the day of occurrence and he is not the eyewitness about the circumstances of victim's departure. 6. In view of all these aforesaid facts and especially keeping in view the period of detention which is of about 5 years now and also the fact that the evidence has been adduced against the accused by the prosecution almost unilaterally and the accused has remained virtually undefended in the case, this Court is of the view that the applicant may be enlarged on bail. 7. Let the applicant-Buddhu alias Guddu alias Dharmendra involved in Case No. 15 of 2015, State v. Buddhu alias Guddu alias Dharmendra, arising out of Case Crime No. 185 of 2013, under Sections 363, 366, 376 (1), I.P.C. and Section 3/4 of the Protection of Children from Sexual Offences Act, P.S. Paschim Sharira, District-Kaushambi be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions: (1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever. (2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice. 8. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 9. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.