Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8254 of 2018 Applicant :- Ravi Dwivedi @ Sahab Dwivedi Opposite Party :- State Of U.P.
Counsel for Applicant :- Chandrakesh Mishra Counsel for Opposite Party :- G.A.,Narendra Deo Rai,Rajeev Giri
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of Ravi Dwivedi, in Case Crime No.282 of 2017, under Sections 376D, 363, 452, 342, 323, 504, 506 IPC, and Section 3/4 POCSO Act, Police Station Industrial Area District Allahabad.
Heard Sri Daya Shankar Mishra, learned counsel for the applicant, Sri N.D. Rai, Advocate on behalf of the complainant and Sri M.P. Singh Gaur, learned AGA along with Sri Avanish Shukla, appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the applicant has been falsely implicated on account of an ongoing civil litigation between the family members of the prosecutrix on one hand, and, the applicant on the other. It is urged that there are material discrepancies between the prosecution case set out in the FIR, the statement of the informant under Section 161 Cr.P.C., the statement of the prosecutrix under Section 161 Cr.P.C., and her statement under Section 164 Cr.P.C., that throw a serious cloud of doubt about the prosecution story. It is pointed out that there is discrepancy in the statement of the first informant and the prosecutrix under Section 161 Cr.P.C., as to the place where her father and his associates reached to rescue her and got into an altercation with the applicant and his associates. Learned counsel for the applicant Sri D.S. Mishra, has been at pains in taking the Court through these discrepancies in the various statements of the informant and the prosecutrix. He submits that the discrepant version in the background of a civil litigation between the families, clearly shows that he has been falsely implicated. Sri Mishra has further argued that out of the four accused nominated, two have been exculpated by the police, and, it is only the applicant and Anil Kumar Mishra, who have been charge-sheeted; Jata Shankar Dwivedi and Umesh Dwivedi have been exculpated, which shows that the entire prosecution story is built on an edifice of falsehood. It is also argued by Sri Mishra that a perusal of the medico legal report does not bear out with a case of rape, as alleged. He has emphasized that the opinion expressed by the doctor shows that there are no signs of use of force and the fact that the prosecutrix is, otherwise, a major aged about 19 years. It is submitted that the applicant is a respectable person, who is in jail since 23.9.2017.
Sri N.D. Rai, learned counsel for the complainant and the learned AGA have opposed the plea for bail in one voice and submitted that the prosecution version is consistent in the FIR, the statement of the informant, and, the prosecutrix recorded under Section 161 Cr.P.C., as also the statement of the prosecutrix under Section 164 Cr.P.C. It clearly nominates the applicant, in the concert with others, of abducting the prosecutrix on 17.9.2017 and confining her to a house located in Naini Bazar, Mewalal Ki Bagiya and ravishing her. The statement of the informant, about the rescue of his daughter where he and his companions were beaten by the applicant and the other co-accused, is also a constant account. In particular, learned counsel for the complainant Sri Rai has placed much lead emphasis on the statement of the prosecutrix recorded under Section 164 Cr.P.C., where the prosecutrix has described graphically as to how she was swooped up by the applicant, Ravi Dwivedi and co-accused, Anshu Mishra on to a motorcycle, forced to ride it with her mouth gagged by a firm grip of the palm. It is pointed out that in the statement it is clearly said by the prosecutrix, that she was taken to a house at Mewalal Ki Bagiya and when she tried to escape and raise alarm, she was thrashed. The applicant has been specifically described in graphic detail to have ravished the prosecutrix, in her statement under Section 164 Cr.P.C., which, according to the learned counsel for the complainant and the learned AGA cannot be disbelieved at this stage.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of the allegations, the severity of punishment, the evidence appearing in the case, in particular, the statement of the prosecutrix under Section 164 Cr.P.C., besides the statement of the informant and the prosecutrix under Section 161 Cr.P.C., the FIR, but without expressing any opinion on merits, this Court does not find it to be a fit case for bail at this stage.
The bail application, accordingly, stands rejected at this stage.
However, looking to the period of detention of the applicant, it is directed that trial pending before the concerned court be concluded expeditiously and preferably within six months from the date of receipt of a certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of the Hon'ble Supreme Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court shall initiate necessary coercive measures for ensuring their presence.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 31.10.2018 NSC