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2025 DIGILAW 81 (ALL)

Om Prakash Kushwaha v. State of U. P.

2025-01-21

SANJAY KUMAR SINGH

body2025
JUDGMENT : Sanjay Kumar Singh, J. 1. By means of this application under Section 483 of BNS S , applicant Om Prakash Kushwaha, who is involved in Case Crime No. 402 of 2024, under Sections 64 , 74, 351 BNS , police station Sikandara, district Agra seeks enlargement on bail during the pendency of trial. 2. Heard Mr. K.K. Dwivedi, learned counsel for the applicant, Mr. Deepak Mishra, learned Additional Government Advocate representing the State and Mr. Vijay Kumar Mishra, learned counsel appearing on behalf of the first informant / complainant. 3. As per prosecution case, in brief, the victim got a first information report lodged on 19.07.2024 for the alleged offence under Sections 64 , 74 and 351 BNS against the applicant making allegations inter alia that the applicant had an evil eye on her, but she always used to address him as brother from beginning. The accused's younger daughter Ritika and her younger brother Aman were friends since childhood. Due to which applicant managed to send her younger brother to jail in a false case, who is minor. The bail application of her younger brother was rejected by the High Court on 18 September 2023, taking advantage thereof, on 19 September 2023, Om Prakash Kushwaha, called her and asked her to meet him. When she refused to meet him, applicant threatened her that if she did not come to meet him, he would implicate her elder brother Salman and brother-in-law also in a false case. Due to fear, she went to meet the applicant in Subhash Park, where the applicant held her hand and said that he likes her very much. If she marries him, he will buy a separate flat for her and only then he will withdraw the case against her younger brother. When she refused for marriage, then the applicant said that if she cannot marry him, then have physical relation with him and he will take the case back. As such applicant used to call her everyday in this manner and called her to meet at different places. When she refused for marriage, then the applicant said that if she cannot marry him, then have physical relation with him and he will take the case back. As such applicant used to call her everyday in this manner and called her to meet at different places. Many time the applicant used to call her to meet him in the car by luring her to withdraw her brother's case and made her to put her hand inside his pant (jeans) and when she went to his house he used to ask her for nude photos and made a video call on WhatsApp and asked her to remove her clothes. Every time he used to say the same thing that if she make him happy, he will take back her brother's case. The F.I.R. further alleges that the victim weeps a lot but applicant used to take advantage of her helplessness every time. The applicant made obscene video of her while sitting in car, and threatened to make them viral and asked her to have physical relation. On 18.07.2024, the applicant called her to meet him and took her to Room No. 206 of Hotel Sikandara Pind Baluchi, Opposite Gurudwara, where he took her into confidence in the hotel by writing on a paper and making a signature that he will get the case of her brother withdrawn and made physical relation with her. He also done carnal intercourse with her and put his penis in her mouth. Her brother Salman and mother Afsana came at the spot and informed the police at 112 from the hotel, on which police brought the victim and applicant to Sikandra Police Station gate. Applicant's wife and brother took him away from the gate of police station itself. 4. It is argued by learned counsel for the applicant that the applicant has been falsely implicated in this case on account of enmity with the victim and her family members because on 02.06.2022, he had lodged F.I.R. at Case Crime No. 0322 of 2022 at police Station Jagdishpura, Agra under Section 363 and 366 IPC against the victim's brother-Aman Khan for kidnapping his daughter. Much emphasis has been given by contending that victim herself took the applicant to hotel giving prior information to her family members. Otherwise there was no occasion for the family members to reach the hotel. Much emphasis has been given by contending that victim herself took the applicant to hotel giving prior information to her family members. Otherwise there was no occasion for the family members to reach the hotel. It next submitted that in fact victim was mounting pressure upon the applicant to withdraw his case against her younger brother. Investigating officer has neither conducted fair investigation nor collected any substantive evidence against the applicant. No such incident took place as alleged by the victim in the F.I.R. Medical examination report of the victim is inconsistent with prosecution case. The victim was never blackmailed or terrorized for having physical relation with him. No obscene photographs or video or any electric device was recovered from the possession of the applicant. The applicant does not have any criminal history to his credit, hence he may be released on bail. 5. Per contra, learned A.G.A. for the State as well as learned counsel for the informant vehemently opposed the prayer for bail of the applicant reiterating the prosecution case as mentioned in the F.I.R. by contending that applicant continuously made phone call to the victim and made pressure for compromise putting a condition that in lieu thereof, she would have to make physical relation with him. The victim was medically examined on 19.07.2024 at about 06:15 PM and four external injuries in the nature of multiple soft scabbed abrasion and reddish contusions were found on her body. Duration of the same was about one day old, which corroborate the prosecution case. The accused-applicant (Om Prakash Kushwaha) was apprehended along with the victim at the hotel. The applicant had called the victim on the pretext of withdrawing the case lodged by him against the victim's brother. During investigation, the investigating officer collected the CCTV footage of Hotel Pind Baluchi, in which applicant and victim were seen together at the reception of the hotel and went to hotel room no. 206 at about 12:22 PM and stayed there till 12:43 PM. It is also pointed out that from the contents of WhatsApp chatting between the victim and accused- applicant clearly indicates that applicant was taking advantage of withdrawing the case lodged by him against the victim's brother and used to make physical relation with her. 206 at about 12:22 PM and stayed there till 12:43 PM. It is also pointed out that from the contents of WhatsApp chatting between the victim and accused- applicant clearly indicates that applicant was taking advantage of withdrawing the case lodged by him against the victim's brother and used to make physical relation with her. The applicant is a notorious person, hence in case of granting bail, there is every possibility of his misusing the liberty of bail and tampering with the witnesses and evidence, therefore, bail application of the applicant is liable to be rejected. 6. Having heard learned counsel for the parties and examined the matter in its entirety, I find that main allegation of the victim against the accused- applicant is that the applicant for making comprise and withdrawing his case against the victim's brother put a condition that in lieu thereof she will have to make physical relation with him. The facts of this case is very rare. The modus operandi adopted by the accused to satisfy his lust under the garb of giving assurance of compromising and withdrawing the criminal case lodged against victim's brother by the applicant is an example of dehumanizing and heinous act, which is unlawful intrusion on the right of privacy and chastity of a female. The prosecutrix/ victim has made serious allegations of rape etc. against the applicant giving vivid description of the incident in the F.I.R. and the same has been reiterated by her in her statements recorded under Section 180 and 183 of BNS . There is no inconsistency in the allegation of victim, so far as allegation of rape / making forceful physical relation by the applicant against her wishes is concerned. From the statement of victim, I also find that she has stated inter-alia that applicant lastly on 18.07.2024 called her to meet him at Hotel Pind Baluchi. Then she told her sister Tanisha, who asked her to send her live location and informed her mother and brother, then her mother and brother came there and informed the police at 112. The presence of applicant with prosecutrix / victim in the hotel has been admitted on behalf of the applicant in his bail application. From the medical examination report, it reflects that on protesting, victim was beaten by the applicant. The presence of applicant with prosecutrix / victim in the hotel has been admitted on behalf of the applicant in his bail application. From the medical examination report, it reflects that on protesting, victim was beaten by the applicant. The said factual aspects of the matter are corroborated from the CCTV footage of hotel, medical examination report dated 19.07.2024 of victim and other materials on record. Not only this but from the WhatsApp chatting between the applicant-Om Prakash Kushwaha and victim, which is supported by a certificate of victim under Section 65B of the Indian EVIDENCE ACT also, the aforesaid allegations of the victim is prima-facie corroborated. The said WhatsApp chatting is a part of the case diary and same has been filed on record by the victim through her counter affidavit, but in order to avoid tarnishing the image of the victim, this Court is not mentioning the contents of said inappropriate WhatsApp chatting. The alleged act of the applicant is serious blow to victim's supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim, it leaves behind a traumatic experience, a rapist not only cause physical injuries, but more indelibly leaves a blot on the most cherished possession of a women i.e. dignity, honor, reputation and not the least her chastity. 7. This Court is also of the view that the applicant's alleged conduct of leveraging the victim's familial challenges and exploiting her for personal gain constitutes a serious offence. The exploitation of a vulnerable individual's circumstances by the accused to achieve ulterior motives and his lust is an act that violates the principles of justice and living with dignity enshrined in the Constitution. The victim's statement outlines a clear picture that accused- applicant misusing the vulnerable situation of victim compelled her to enter into unwilling acts of making physical relation with him, which is apparent from the evidences collected during investigation. 8. In view of the above, at this stage, I do not find any good ground to disbelieve the statement of victim and presume the false implication of the applicant. 9. 8. In view of the above, at this stage, I do not find any good ground to disbelieve the statement of victim and presume the false implication of the applicant. 9. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties as noted above, role assigned to applicant, gravity of offence, severity of the punishment and the manner in which the offence has been committed, as well as threat to the safety and dignity of the victim, I do not find any good ground to release the applicant on bail. 10. Accordingly, the bail application is rejected. 11. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.