Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10352 of 2021 Applicant :- Dr Anil Dwivedi Opposite Party :- State of U.P.
Counsel for Applicant :- Ram Pravesh Yadav,Dharmendra Kumar Dwivedi,Rajrshi Gupta Counsel for Opposite Party :- G.A.,Namit Kumar Sharma,Narendra Singh
Hon'ble Raj Beer Singh,J.
Heard Sri Dileep Kumar, learned Senior Advocate assisted by Sri Dharmendra Kumar Dwivedi, learned counsel for the applicant, Sri T.P. Singh, learned Senior Advocate assisted by Sri Narendra Singh, learned counsel for the complainant and learned A.G.A. for the State.
The present bail application has been filed by the applicant in case crime No. 704/2020, under Sections 376-D, 506, 328 IPC, police station Colonelganj, District Prayagraj with the prayer to enlarge the applicant on bail.
It has been argued by learned senior counsel for the applicant that the accused- applicant is innocent and he has not committed any such offence. It was submitted that in the FIR, five specific incidents of different dates have been shown and last incident has been shown of 08.03.2020, but FIR has been lodged on 14.09.2020 and thus, there is long and undue delay in reporting the matter to police, which creates doubt about the authenticity of the prosecution version. It was submitted that the allegation in FIR regarding selling of land of Pratapgarh is completely false and baseless and that the true fact is that mother of prosecutrix has agreed to sell her house located at Bailey Road, Allahabad against consideration of Rs. 60 lacs and the token amount of Rs. 3,85,000/- was transferred in the accounts of victim and her mother through R.T.G.S. by applicant. However, later on prosecutrix and her mother have enhanced the price of house from Rs. 60 lacs to Rs. 85 lacs. Learned senior counsel has referred copies of statement of bank account to substantiate his argument. It has further been submitted that when the deal of sale frustrated due to demand of excessive amount of Rs 85 lacs in place of Rs. 60 lacs, applicant asked for refund of his token amount and in fact mother of prosecutrix has given a cheque of Rs. 2 lacs on 13.09.2020, but later on it was dishonoured due to insufficient balance and in this regard applicant has initiated legal proceedings against the prosecutrix for recovery of his cheque amount and due to which the prosecutrix has threatened to falsely implicate the applicant in a rape case. Learned senior counsel has also submitted that prosecutrix is an educated and major lady, aged about 20 years and that the alleged incidents of rape mentioned by her are thoroughly false and improbable. It has been pointed out that last incident has been shown of 08.03.2020 at 12.30 PM, but on that day applicant was in Varanasi at Hotel Taj Ganges to attend a meeting on Diabetes Control & Care Summit. It has further been submitted that two incidents of rape have been shown in the hotel, but at that time no complaint was made to the police or hotel manager etc. and that it is not probable that such an incidents might have taken there. Learned senior counsel has also referred the copies of whatsapp chats between applicant and prosecutrix took place on 03.10.2019, wherein prosecutrix is asking to enhance the price of above-stated property. Learned senior counsel has also referred the copies of several whatsapp chats starting from 18.02.2020 to 20.03.2020 and submitted that if any incidents of rape might have taken place on 28.10.2019, 17.11.2019, 26.11.2019 and 04.12.2019, such chatting might have not taken place after such incidents. Learned senior counsel has referred chatting record and submitted that it belies the version of prosecutrix regarding alleged incidents of rape. It was also stated that allegations of rape were also made against co- accused Shyam Prakash Dwivedi, who has already been enlarged on bail by co- ordinate Bench of this Court. It has further been submitted that applicant is a qualified doctor and that now he is in judicial custody since 16.09.2020, having no criminal history and that in case, applicant is enlarged on bail, the applicant will not misuse the liberty of bail.
Learned A.G.A. has opposed the prayer for bail.
Sri T.P. Singh, learned senior counsel for the complainant has strongly opposed the prayer for bail and argued that so far the bail of co-accused Shyam Prakash Dwivedi is concerned, applicant cannot claim parity with him. Learned senior counsel has referred bail order of co-accused Shyam Prakash Dwivedi and submitted that in view of the law laid down by Hon'ble Apex Court in the case of Sonu vs. Sonu Yadav And Another, criminal appeal no. 377 of 2021, applicant is not entitled for bail on that ground. Learned senior counsel has also submitted that there are serious allegations of rape against the applicant. It was further submitted that applicant is main accused and he has repeatedly committed rape upon prosecutrix. Learned senior counsel has referred the statement of prosecutrix recorded under Sections 164 Cr.P.C. and submitted that applicant has committed rape upon prosecutrix for several times and that applicant is a high handed man having association with ruling party and that the delay in lodging the FIR has been duly explained. The informant has made efforts to lodge FIR at the earliest but as the applicant was having political clout, her FIR could not be registered for several months. It was submitted that on 18.02.2021 even the brother of prosecutrix has been murdered in Pune, Maharashtra, where he was pursuing his M.B.A. by giving the colour of road accident. It was submitted that brother of prosecutrix has been got done away by professional killers in pursuance of the conspiracy of applicant and his associates. It has further been submitted that there is sufficient evidence against the applicant and that on the basis of evidence, charge-sheet has also been filed against them. It was also stated that being in noble profession of medical practice, applicant has committed such an incident, wherein prosecutrix was repeatedly subjected to rape. However, it has not been disputed that criminal history mentioned in counter affidavit is not in respect of applicant.
Perusal of record shows that prosecutrix is a major lady, aged about 20 years and five incidents have been shown in the FIR and last incident has been shown of 08.03.2020, but the FIR has been lodged on 14.09.2020. It is also apparent that there were some money transactions between parties over the issue of sale of the property of mother of prosecutrix and it appears from the alleged chatting that the prosecutrix and applicant were continuously chatting with each other even after the alleged incidents of rape and threat. Considering the submissions of learned counsel for the parties, nature of allegations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the opinion that a case for bail is made out. Hence, the bail application is hereby allowed.
Let the applicant Dr Anil Dwivedi involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned subject to the following conditions:
1. The applicant will not tamper with the evidence during trial.
2. The applicant will not pressurize/intimidate the prosecution witnesses.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant will not try to contact, threat or otherwise influence the complainant or any of the witness of the case.
In case of breach of any of the above condition, the trial court shall be at liberty to cancel the bail of applicant in accordance with law.
Order Date :- 28.7.2021 Anand