Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 672 (ALL)

Vinay Kumar v. State of U. P.

2019-03-12

MANJU RANI CHAUHAN

body2019
ORDER : Manju Rani Chauhan, J. 1. Heard Mr. Chandra Prakash Pandey, learned counsel for the applicant-Dr. Vinay Kumar in Criminal Misc. Bail Application No. 4334 of 2019, Mrs. Swati Agarwal, learned counsel for the applicant-Pramod Yadav, in Criminal Misc. Bail Application No. 5285 of 2019 and Mr. Om Prakash Mishra, learned A.G.A. for the State in both the bail applications. 2. Perused the material on record. 3. Both the bail applications have been filed by the applicants-Dr. Vinay Kumar & Pramod Yadav with a prayer to enlarge them on bail in Case Crime No. 139 of 2018, under Sections 376-D, 452 306 & 506 I.P.C., Police Station-Paraur, District Saharanpur, during the pendency of the trial. 4. From the records, it transpires that a first information report was lodged by the husband of the deceased, namely, Ramveer on 30th August, 2018 under Section 452 and 376 I.P.C. against applicant-Dr. Vinay Kumar only, wherein it has been alleged that the first informant worked as labour in Delhi. On 29th August, 2018, the first informant was informed by his wife, namely, Devika aged about 28 years that Dr. Vinay Kumar used to visit the house of the first informant for giving medicine to his wife. On 18th August, 2018 at 09:00 p.m. (night), the wife of the first informant was called by the applicant-Dr. Vinay Kumar to give her injection, where he sexually assaulted her. Yesterday her wife set herself on fire by pouring kerosene oil on herself due to which also his son scorched and his wife was admitted in the hospital and for the aforesaid act of the applicant-Dr. Vinay Kumar of sexually assaulting the victim, the first information report has been lodged. It is pertinent to mention here that the victim during treatment expired on 30th August, 2018 at 06:00 p.m. in the hospital. 5. It also transpires from the record that the deceased had already given an application on 23rd August, 2018 for lodging of the first information report against the applicant-Dr. Vinay Kumar qua the offence of sexual assault committed by him upon her on 18th August, 2018 but she was forced to enter into a compromise on 29th August, 2018 in the presence of her husband, Ramveer, one Ram Ladaite, Dinesh Singh and Kashmira-Gram Pradhan of Gram panchayat Habbibullapur @ Amritapur, Mirzapur. Vinay Kumar qua the offence of sexual assault committed by him upon her on 18th August, 2018 but she was forced to enter into a compromise on 29th August, 2018 in the presence of her husband, Ramveer, one Ram Ladaite, Dinesh Singh and Kashmira-Gram Pradhan of Gram panchayat Habbibullapur @ Amritapur, Mirzapur. However just after entering into the said compromise dated 29th August, 2018, she set herself on fire by pouring kerosene oil on herself and thereafter she was admitted in the hospital, where her dying declaration was recorded on 30th August, 2018, in which she had named the applicant-Pramod Yadav, Mukesh Singh and applicant-Dr. Vinay Kumar Yadav. In the dying declaration, she has stated that on 18th August, 2018, all three persons, who were resident of her village, had committed rape upon her for which she had given application on 23rd August, 2018 in the Police Station and a compromise was entered at the Police Station. She has also stated in the dying declaration that to compromise, those people threatened her that if she does not compromise then they would kill her and her children, due to fear, she entered into compromise. On fear of defamation in the society, she poured kerosene oil on herself and set herself on fire. 6. Though, only the applicant-Dr. Vinay Kumar has been named in the first information report but in the C.D.-II dated 31st August, 2018, the Investigating Officer recorded involvement of applicant-Pramod Yadav and Mukesh Singh, who have also been named in the dying declaration of the deceased-Devika. 7. Mr. C.P. Pandey, learned counsel for the applicant-Dr. Vinay Kumar submits that the applicant is a Doctor and he was doing the treatment of the deceased as she was a patient of Tuberculosis (T.B.) but due to money dispute, the deceased had made a false complaint against the applicant. However, on request of the applicant along with his parents being made to the deceased as well as on the advice of some respectable persons of the village, she entered into the compromise on 29th August, 2018 in the Police Station. Thereafter due to some dispute between the husband and wife, the deceased had committed suicide by pouring kerosene oil on her herself and set herself on fire. Dying Declaration of the deceased is also false and planted by the prosecution. Thereafter due to some dispute between the husband and wife, the deceased had committed suicide by pouring kerosene oil on her herself and set herself on fire. Dying Declaration of the deceased is also false and planted by the prosecution. When the deceased herself entered into the compromise on her own free will for the same incident, which was alleged to have took place on 18th August, 2019, allegation made in the said Dying Declaration does not survive any more. Mr. Pandey, learned counsel for the applicant-Dr. Vinay Kumar further submits that the applicant has no criminal antecedents to his credit except the present one. As the present case is false, the applicant is liable to be enlarged on bail. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 31st August, 2018. Mr. Pandey, learned counsel for the applicant-Dr. Vinay Kumar lastly submits that the co-accused-Mukesh Singh against whom also allegation of sexual assault had been made in the dying declaration, has already been enlarged on bail by the another Bench of this Court vide order dated 17th January, 2019 passed in Criminal Misc. Bail Application No. 48064 of 2018. The case of the present applicant is similar and identical to that of the co-accused, Mukesh. As such the present applicant is also liable to be enlarged on bail. 8. Mrs. Swati Agarwal, learned counsel for the applicant-Pramod Yadav, submits that the applicant has not been named in the first information report dated 30th August, 2018 lodged by the husband of the deceased. For the first time, name of the applicant and other co-accused Mukesh Singh have been surfaced in the dying declaration of the deceased along with other co-accused-Dr. Vinay Kumar, who has been named in the first information report. Since the applicant is neighbor of the first informant and there was some dispute between the applicant and the first infomant due to drainage problem the present applicant has been falsely implicated in the present case. Mrs. Vinay Kumar, who has been named in the first information report. Since the applicant is neighbor of the first informant and there was some dispute between the applicant and the first infomant due to drainage problem the present applicant has been falsely implicated in the present case. Mrs. Swati Agarwal, learned counsel for the applicant-Promod Yadav further submits that in the dying declaration the deceased had alleged that on 18th August, 2018, the present applicant and the other two co-accused had sexually assaulted her for which she had made an application at the Police Station and thereafter on 29th Augsut, 2018 she entered into the compromise. As the matter has already been settled by way of compromise, the present case does not survive any further. The applicant has no criminal antecedents to his credit except the present one. As the present case is false, the applicant is liable to be enlarged on bail. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 2nd September, 2018. Mrs. Swati Agarwal, learned counsel for the applicant-Promod Yadav further submits that the case of the present applicant is similar and identical to that of the co-accused Mukesh, against whom for the first time commission of rape upon the deceased has been levelled but is on better footing to that of the other co-accused Dr. Vinay Kumar. The co-accused Mukesh has already been enlarged on bail by this Court vide order dated 17th January, 2019 passed in Criminal Misc. Bail Application No. 48064 of 2018. As such the present applicant is also liable to be enlarged on bail. 9. Per contra, Mr. Om Prakash Mishra, the learned A.G.A. has opposed the present application for bail. He states that the applicant-Dr. Vinay Kumar is not only the named accused but also is the charge-sheeted accused, whereas the applicant-Pramod Yadav is a charge-sheeted accused. 10. Mr. As such the present applicant is also liable to be enlarged on bail. 9. Per contra, Mr. Om Prakash Mishra, the learned A.G.A. has opposed the present application for bail. He states that the applicant-Dr. Vinay Kumar is not only the named accused but also is the charge-sheeted accused, whereas the applicant-Pramod Yadav is a charge-sheeted accused. 10. Mr. Mishra, the learned A.G.A. submits that the contention of the learned counsel for both the applicants that both the applicants have been falsely implicated in the present case is liable to be rejected on the ground that both the learned counsel for the applicants have failed to produce any documentary evidence in support of the same, they only made general, vague and omnibus allegation against the prosecution, which cannot be accepted. 11. Mr. Mishra, learned A.G.A. further submits that the contention of both the learned counsel for the applicants that for the alleged incident dated 18th August, 2018, the deceased had entered into compromise at the Police Station on 29th August, 2018, therefore, the present case for the same incident does not survive any further, is also liable to be rejected on the ground that the said compromise is a waste paper as the same has been entered into at the Police Station not before any competent court of law. Such compromise has not been made before any competent court of law, therefore, the same has no relevance before this Court also. Apart from the above, the Apex Court in various judgments has restricted the High Court not to quash the criminal proceedings, which are not compoundable i.e. heinous crimes, on the basis of such compromise. In support of the same, he has placed reliance upon the following judgments of the Apex Court: (i) B.S. Joshi and others Vs. State of Haryana and Another; (2003) 4 SCC 675 , (ii) Nikhil Merchant Vs. Central Bureau of Investigation; (2008) 9 SCC 677 , (iii) Manoj Sharma Vs. State and Others; (2008) 16 SCC 1 , (iv) Gian Singh Vs. State of Punjab; (2012) 10 SCC 303 , (v) Narindra Singh and others Vs. State of Punjab; (2014) 6 SCC 466 . 12. Central Bureau of Investigation; (2008) 9 SCC 677 , (iii) Manoj Sharma Vs. State and Others; (2008) 16 SCC 1 , (iv) Gian Singh Vs. State of Punjab; (2012) 10 SCC 303 , (v) Narindra Singh and others Vs. State of Punjab; (2014) 6 SCC 466 . 12. In the case of Gian Singh (Supra) in paragraph-54, the Apex Court has observed as follows: “Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of such settlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.” He further submits that the said compromise has also no relevance as the deceased had compromised due to fear, which had been stated by her in the dying declaration. 13. Mr. Mishra, learned A.G.A. further submits that both the applicants and the other co-accused Mukesh have rightly been implicated in the present case. The deceased was sexually assaulted by the applicants and co-accused for which she had already made an application at the police Station for lodging of first information report against them but due to fear, she entered into the compromise. Due to fear of defamation in the society, her conscious did not allow her to live long, therefore, she committed suicide by pouring kerosene oil on herself and set herself on fire. During treatment, she had recorded her dying declaration on 30th August, 2019 in which she had stated that both the applicants and other co-accused Mukesh Singh had sexually assaulted her. The contention of the learned counsel for both the applicants that the dying declaration is false and planted is also liable to be rejected on the ground that the dying declaration made by a person on the verge of his/her death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. In support of the same, Mr. Mishra has placed reliance upon the judgment of the Apex Court in the case of Bijoy Das Versus State of West Bengal reported in (2008) 4 SCC 511 , wherein in paragraph-11, the Apex Court has held as follows: “11. As observed by this Court in Narain Singh v. State of Haryana AIR vide para 7: (SCC p. 267, para 7) A dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding the circumstances leading to his death. But at the same time the dying declaration like any other evidence has to be tested on the touchstone of credibility to be acceptable. It is more so, as the accused does not get an opportunity of questioning veracity of the statement by cross-examination. The dying declaration if found reliable can form the base of conviction. 8. In Babulal v. State of M.P. ( 2003 (12) SCC 490 ) this Court observed vide in para 7 of the said decision as under: (SCC p. 494) A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is a man will not meet his Maker with a lie in his mouth (nemo moriturus praesumitur mentiri). Mathew Arnold said, truth sits on the lips of a dying man. The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. 9. In Ravi v. State of T.N. (( 2004 (10) SCC 776 ) this Court observed that: (SCC p. 777, para 3) If the truthfulness of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law.” 14. Mr. 9. In Ravi v. State of T.N. (( 2004 (10) SCC 776 ) this Court observed that: (SCC p. 777, para 3) If the truthfulness of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law.” 14. Mr. O.P. Mishra, learned A.G.A. lastly submits that the parity claimed by both the learned counsel for the applicants is also liable to be rejected on the ground that the grant of bail is not a mechanical act and principle of consistency cannot be extended to repeating a wrong order. If the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle, it will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. Mr. Mishra has also placed reliance upon following judgments of the Apex Court as well as of this Court: (a) In Chandigarh Administration Vs. Jagjit Singh; AIR 1995 SC 705 , the Apex Court in paragraph-8 has held as follows: "....... if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal and unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order." "...... The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. "..... Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law." (b) In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. "..... Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law." (b) In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh and another, decided on 12.3.2001, the Hon'ble Apex Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court it observed that:- "The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused-respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier." (c) In Satyendra Singh Vs. State of U.P.; 1996 A. Cr. R.867 also, the following observations have been made by this Court in para 16:- "The orders granting, refusing or cancelling bail are orders of interlocutory nature. It is true that discretion in passing interim orders should be exercised judicially but rule of parity is not applicable in all the cases, where one or more accused have been granted bail or similar role has been assigned inasmuch as bail is granted on the totality of facts and circumstances of a case. Parity can not be a sole ground and is one of the grounds for consideration of the question of bail.” Even otherwise, the learned A.G.A. has pointed out that bail order of co-accused, namely Mukesh Singh had been obtained by suppressing material facts and misrepresenting before the Hon'ble Court. 15. Learned A.G.A. next submits that upto this stage, there is no such material on the record on the basis of which it can be presumed that the applicants are innocent. The burden to prove the innocence of the applicants, which is required under Section 106 of the Indian Evidence Act, remains undischarged. So far as the dispute arose between the applicant and the first informant is concerned, no documentary evidence has been brought on record in support of the same. It is case of such heinous crime where the social ramification of such crimes are very dishonourable to the victim and she suffers social death. So far as the dispute arose between the applicant and the first informant is concerned, no documentary evidence has been brought on record in support of the same. It is case of such heinous crime where the social ramification of such crimes are very dishonourable to the victim and she suffers social death. The offences of this nature which involves social defamation, there is always a general tendency to suppress such events at the initial stage in order to avoid the lady being stigmatized. The offence committed by the applicants is egregious in nature and it speaks about depravity of the applicants character, who had no moral qualms in violating modesty and honour of a lady due to which she committed suicide. Dealing with the complicity of applicants-accused and in light of the material on record, the learned A.G.A. vehemently submits that no case for bail is made out and both the bail applications of the present applicant are liable to be rejected. 16. Having considered the submissions made by the learned counsel for the applicants, the learned A.G.A. for the State and upon perusal of the evidence brought on record as well as the complicity of the applicants but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, both the bail applications stand rejected. 17. However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same as expeditious, as possible from the date of receipt of certified copy of this order, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and another reported in AIR 2018 (SC) 2004, if there is no legal impediment. in accordance with law, without granting any unnecessary adjournment to either of the parties, provided the applicants fully cooperate in conclusion of the trial, if there is no other legal impediment. 8. Office is directed to transmit a certified copy of this order to the court concerned within a fortnight. 9. It is clarified that any observations, if any, made by this Court 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.