# Dhirendra v. State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 40
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-04
- **Case number:** Criminal Appeal No. 1699 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dhirendra-v-state-of-u-p-anr-50324
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 376-D & 506 - Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(V) -
I.T. (Amendment) Act, 2008 - Sections 66E, 67-A - Constitution of India, 1950 -
Article 21 - Appeal against rejection of bail
- Initially F.I.R lodged against present
7 All. Dhirendra Vs. State of U.P. & Anr.
41
accused/appellant and two other named
accused persons after an inordinate and
unexplained delay of three days - No
allegation of rape against appellant and
only allegation against him was of making
video when other two accused were
committing rape upon prosecutrix, who
have already been enlarged on bail - After
conclusion of investigation, charge sheet
filed against all the three named accused -
Victim was major, aged about 20 years -
Medical
report
of
victim
does
not
corroborate manner of commission of
offence - No mobile phone recovered by
Investigating Agency nor any alleged
video clip has been recovered from such
mobile phone - Appellant was languishing
in jail since 26.03.2022 - After considering
all facts and circumstances of case, nature
of evidence, period of detention already
undergone,
unlikelihood
of
early
conclusion of trial, thus impugned order
set aside. (Para 5, 14, 15)

Appeal allowed. (E-13)

List of Cases cited:

Dataram Singh Vs St. of UP & anr., reported in
(2018) 3 SCC 22

## Text

40 INDIAN LAW REPORTS ALLAHABAD SERIES
the prosecution. FSL report also does not
support the case of the prosecution. As
admitted, there was an enmity/dispute
between both the parties with respect to
land. The manner in which the occurrence
is stated to have occurred is not believable.
Therefore, in the facts and circumstances of
the case, we find that the solitary version of
the prosecutrix - PW5 cannot be taken as a
gospel truth at face value and in the
absence of any other supporting evidence,
there is no scope to sustain the conviction
and sentence imposed on the appellant and
accused is to be given the benefit of doubt."

33. The law laid down through the
aforesaid
judgments
of
the
Hon'ble
Supreme Court, in clear terms, provides
that if the testimony of the prosecutrix has
been found to be full of contradictions, then
the conviction cannot be based on certain
piece of testimony of the prosecutrix unless
there is corroborative evidence to support
the version of the prosecutrix.

34. In the present case, learned trial
court has found that the testimony of the
prosecutrix
is
unbelievable/improbable,
therefore, in absence of any corroborative
evidence, learned trial court has committed
manifest error of law and facts both while
convicting and sentencing the appellant for
offence punishable under Section 376 IPC.

35. I find and hold that the
prosecution in the facts of the present case
has not been able to prove charges against
the appellant beyond reasonable doubt.
Accordingly, the present appeal has got
merit and deserves to be allowed.

36. In view of the aforesaid reasons,
this criminal appeal is allowed. The
judgment and order dated 28.11.2001
passed by 11th Additional Sessions Judge,
Faizabad in Sessions Trial No.90/93
convicting appellant for offence punishable
under Section 376 IPC and sentencing him
for rigorous imprisonment of 10 years with
fine of Rs.5,000/-, is hereby set aside. The
appellant is acquitted of the charge levelled
against him for offence punishable under
Section 376 IPC.

37. The appellant is already on bail,
therefore, his bail bonds are cancelled and
sureties are discharged.

38. Let lower court record be sent
back to the trial court concerned along with
a copy of this order for necessary
compliance.
----------
(2023) 7 ILRA 40
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1699 of 2022

Dhirendra ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Shraddha Verma, Ajeet Kumar, Shaunak
Singh, Sudhir Kumar, Suhail Kashif

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 376-D & 506 - Scheduled Castes
and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(V) -
I.T. (Amendment) Act, 2008 - Sections 66E, 67-A - Constitution of India, 1950 -
Article 21 - Appeal against rejection of bail
- Initially F.I.R lodged against present
7 All. Dhirendra Vs. State of U.P. & Anr.
41
accused/appellant and two other named
accused persons after an inordinate and
unexplained delay of three days - No
allegation of rape against appellant and
only allegation against him was of making
video when other two accused were
committing rape upon prosecutrix, who
have already been enlarged on bail - After
conclusion of investigation, charge sheet
filed against all the three named accused -
Victim was major, aged about 20 years -
Medical
report
of
victim
does
not
corroborate manner of commission of
offence - No mobile phone recovered by
Investigating Agency nor any alleged
video clip has been recovered from such
mobile phone - Appellant was languishing
in jail since 26.03.2022 - After considering
all facts and circumstances of case, nature
of evidence, period of detention already
undergone,
unlikelihood
of
early
conclusion of trial, thus impugned order
set aside. (Para 5, 14, 15)

Appeal allowed. (E-13)

List of Cases cited:

Dataram Singh Vs St. of UP & anr., reported in
(2018) 3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Shri Suhail Kashif along
with Shri Sudhir Kumar, the learned
counsels for the appellant as well as Shri
Ashok Kumar Singh, the learned A.G.A.
for the State-opposite party No. 1 and
perused the entire record.

2. This Court vide order dated
19.07.2022 while issuing notice to the
opposite party No. 1 has already granted
time to the learned A.G.A. to file counter
affidavit.

3. As per the office report dated
03.08.2022 notice has already been served
upon the opposite party No. 2 but till date
neither any counsel has appeared on behalf
of opposite party No. 2 nor counter
affidavit has been filed on her behalf. Even
no counter affidavit has been filed on
behalf of State till date. It appears that
learned A.G.A. as well as opposite party
No. 2 are not interested to file any counter
affidavit.

4. In the above circumstances, as the
matter pertains to bail this Court has no
option but to proceed for final arguments to
decide the present appeal.

5. The present criminal appeal under
Section 14-A (2) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act
has
been preferred
against
the
impugned orders dated 05.05.2022 and
05.07.2022 passed by the court of learned
Special Judge (S.C./S.T. Act), Barabanki in
Bail Application No. 1008 of 2022
(Dhirendra vs. State of U.P.), arising out of
Case Crime No. 86 of 2022, under Sections
376-D, 506 I.P.C. read with Section 3(2)(V)
of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act and Section
67-A of I.T. (Amendment) Act and Bail
Application No. 1639 of 2022 (Dhirendra
Vs. State of U.P.), arising out of Case
Crime No. 86 of 2022, under Section 66-E
of I.T. (Amendment) Act, relating to Police
Station-
Jaidpur,
District-
Barabanki,
respectively, whereby the both the bail
applications of the appellant have been
rejected.

6. Learned counsel for the appellant
submits that the F.I.R. was lodged under
Sections 376-D, 506 I.P.C. read with
Section 3(2)(V) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act and Section 67-A of I.T. (Amendment)
Act against three persons including the
present appellant, which too, after an
42 INDIAN LAW REPORTS ALLAHABAD SERIES
inordinate delay without explaining the
delay. The charge sheet was filed against all
the accused persons.

7. Learned counsel for the appellant
further submits that against the present
appellant there is only allegation against
him is for making video of prosecutrix
while two other accused were committing
rape of the prosecutrix, whereas no any
camera
or
mobile
phone
has
been
recovered. Thus, the entire allegation
levelled against the appellant is false and
fabricated which has been made by the
prosecutrix due to enmity as there is enmity
between the family members of the
appellant and the family members of the
proxecutrix.

8. Learned counsel for the appellant
submits that two accused against whom
prosecutrix have levelled allegation of rape
committed upon her by them have already
been enlarged on bail by two different
coordinate Benches of this Court vide
orders dated 05.05.2023 and 19.06.2023
passed in Criminal Appeal No. 1082 of
2022 (Mohit Vs. State of U.P. and another)
and Criminal Revision No. 820 of 2022
(Vijay Kumar Vs. State of U.P.)., and as
there is only allegation against the
appellant is for making video of prosecutrix
while two other accused were committing
rape of the prosecutrix, thus, the case of
appellant is on the better footing than that
of the aforesaid two accused. Both the
orders are taken on record.

9. Learned counsel for the appellant
further submits that younger cousin sister
of the victim was also present on the date
of occurrence who went to inform her
family members about this incident. He
submitted that the story as narrated by
victim
itself
is
improbable
as
the
accused/appellants, who were three in
number, would not allow anybody to
escape from the scene of occurrence so
easily so as to go and inform his/ her family
members about the incident. He further
submitted that the victim is major, aged
about 20 years. The medical report of the
victim does not corroborate the manner of
commission of offence. He has also
submitted that no mobile phone has been
recovered by the Investigating Agency, nor
any alleged video clip has been recovered
or retrieved from any such mobile phone
which belies the prosecution story.

10. Learned counsel for the appellant
further submits that accused/appellant is
languishing in jail since 26.03.2022, who
has no previous criminal history, and in
case the appellant is enlarged on bail, he
shall not misuse the liberty of bail and he
shall also fully cooperate with the trial. He
has further submitted that there is no
possibility of the appellant to intimidate or
pressurize the witnesses or any other
persons acquainted with the facts of the
present case.

11. For the aforesaid reasons, learned
counsel for the appellant submits that the
instant criminal appeal deserves to be
allowed and the orders dated 05.05.2022
and 05.07.2022 passed by the court of
learned Special Judge (S.C./S.T. Act),
Barabanki in Bail Application No. 1008 of
2022 (Dhirendra vs. State of U.P.), arising
out of Case Crime No. 86 of 2022, under
Sections 376-D, 506 I.P.C. read with
Section 3(2)(V) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act and Section 67-A of I.T. (Amendment)
Act and Bail Application No. 1639 of 2022
(Dhirendra Vs. State of U.P.), arising out of
Case Crime No. 86 of 2022, under Section
66-E of I.T. (Amendment) Act, relating to
7 All. Dhirendra Vs. State of U.P. & Anr.
43
Police Station- Jaidpur, District- Barabanki,
deserve to be set aside and consequently,
the accused/appellant deserves to be
enlarged on bail during pendency of the
trial.

12. Several other submissions in order
to demonstrate the falsity of the allegations
made against the appellant have also been
placed
forth before
the
Court. The
circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has been assured on behalf of the
appellant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. It has also been pointed
out that the accused is not having any
criminal history and he is in jail since
26.03.2022 and that in the wake of heavy
pendency of cases in the Court, there is no
likelihood of any early conclusion of trial.

13. Per contra, learned A.G.A. has
vehemently
opposed
the
prayer
by
submitting that there is active participation
of
accused/appellant
in
the
crime.
Therefore, the accused/ appellant is not
entitled to be enlarged on bail and the
instant criminal appeal deserves to be
dismissed. However, he has been unable to
dispute the other factual submissions
advanced by the learned counsel for the
accused/appellant.

14. Having heard the learned counsel
for the appellant, learned A.G.A. for the
State and upon perusal of record, it
transpires that initially a first information
report came to be lodged against the
present accused/appellant and two other
named accused persons, namely, Mohit and
Vijay after an inordinate and unexplained
delay of three days, under Sections 376-D,
506 I.P.C., 67-A I.T. (Amendment) Act &
Section 3(2)(V) of SC/ST Act. Upon
conclusion of investigation, a charge sheet
came to be laid against the all the three
named accused including the appellant for
the offence under Sections 376 D, 506
I.P.C. & Section 3(2)(v) S.C./S.T. Act, and
Section 66-E I.T. (Amendment) Act. The
victim is major, aged about 20 years. The
medical report of the victim does not
corroborate the manner of commission of
offence. No mobile phone has been
recovered by the Investigating Agency, nor
any alleged video clip has been recovered
or retrieved from any such mobile phone.
The accused/ appellant is languishing in jail
since 26.03.2022 and he has no previous
criminal history.

15. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, unlikelihood of early
conclusion of trial and also in absence of
any convincing material to indicate the
possibility of tampering with the evidence
and considering the fact that there is no
allegation of rape against the present
appellant and only allegation made against
him is of making video of the occurrence
when other two accused were committing
rape upon the prosecutrix, further two other
named accused against whom prosecutrix
have levelled allegation of rape committed
upon her by them have already been
enlarged on bail by two different coordinate
Benches of this Court and the case of
appellant is on the better footing than that
of the aforesaid two accused, further
medical report of the victim does not
corroborate the manner of commission of
44 INDIAN LAW REPORTS ALLAHABAD SERIES
offence, neither mobile phone has been
recovered by the Investigating Agency, nor
any alleged video clip has been recovered
or retrieved from any such mobile phone,
further considering the fact that appellant is
in jail since 26.03.2022 and has now by
done a substantial period of detention and
further considering the larger mandate of
the Article 21 of the Constitution of India
and the law laid down by the Hon'ble Apex
Court in the case of Dataram Singh Vs.
State of UP and another, reported in
(2018) 3 SCC 22, this Court is of the view
that the learned court below has failed to
appreciate the material available on record,
both the impugned orders passed by the
trial court are liable to be set aside.

16. Accordingly, the appeal is
allowed.
Consequently,
the
orders
05.05.2022 and 05.07.2022 passed by the
court of learned Special Judge (S.C./S.T.
Act), Barabanki in Bail Application No.
1008 of 2022 (Dhirendra vs. State of U.P.),
arising out of Case Crime No. 86 of 2022,
under Sections 376-D, 506 I.P.C. read with
Section 3(2)(V) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act and Section 67-A of I.T. (Amendment)
Act and Bail Application No. 1639 of 2022
(Dhirendra Vs. State of U.P.), arising out of
Case Crime No. 86 of 2022, under Section
66-E of I.T. (Amendment) Act, relating to
Police Station- Jaidpur, District- Barabanki,
are hereby reversed and set aside.

17. Let the appellant, Dhirendra, be
enlarged on bail in Case Crime No. 86 of
2022, under Sections 376-D, 506 I.P.C.
read with Section 3(2)(V) of Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act and Section 67-A of I.T.
(Amendment) Act and Case Crime No. 86
of 2022, under Section 66-E of I.T.
(Amendment) Act, relating to Police
Station- Jaidpur, District- Barabanki with
the following conditions:-

(i) The appellant shall furnish a
personal bond with two sureties each of
like amount to the satisfaction of the court
concerned.

(ii) The appellant shall appear and
strictly comply following terms of bond
executed under section 437 sub section 3 of
Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in
accordance with the conditions of the bond
executed under this Chapter.

(b) The appellant shall not
commit an offence similar to the offence of
which he is accused, or suspected, of the
commission of which he is suspected, and

(c) The
appellant
shall
not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.

(iii) The appellant shall cooperate
with investigation /trial.

(iv) The appellant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(v) The appellant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, the trial
court may proceed against him under
Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses
the liberty of bail during trial, in order to
secure his presence, proclamation under
section 82 Cr.P.C. is issued and the
7 All. Shailendra Saini Vs. State of U.P. & Anr.
45
appellant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain
present, before the trial court on the dates
fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
appellant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

18. The trial court is also directed to
expedite the trial of the aforesaid case,
within a period of one year from today, by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2023) 7 ILRA 45
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2205 of 2022

Shailendra Saini ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Vashu Deo Mishra

Counsel for the Respondents:
G.A., Bhupendra Nath Tripathi

Criminal Law - Indian Penal Code,1860 -
Sections 354, 323, 504, 506, 376, 313,
328 & 392 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(V) -
Appeal
against
rejection
of
bail
-
Allegation
against
appellant
that
by
playing fraud and on false promise of
marriage, committed rape - Appellant
contended that prosecutrix was major and
with her consent, physical relation was
made by appellant. (Para 2, 3)

Held, appellant committed rape several
times with prosecutrix either giving some
in toxic material or on some false promise
of marriage, even as per version of F.I.R,
prosecutrix was pregnant and forcefully
aborted
on
instance
of
appellant
-
Prosecutrix marriage was solemnized with
some other person - Appellant did not
leave her free and always threatened her
to give naked photographs and video to
her husband and to her in-laws and after
marriage of prosecutrix, he made physical
relation forcefully several times - She
requested
appellant
to
return
all
photographs, video graphs and pen drive
but
refused
by
accused
-
Appellant
committed heinous crime and he is not
entitled to get any relief. (Para 9, 10)

Appeal dismissed. (E-13)

List of Cases cited:

1. Dr. Dhruvaram Murlidhar Sonar Vs The St. of
Mah., (2019) 18 SCC 191

2. Anurag Soni Vs St. of Chhattisgarh, (2019) 13
SCC 1: AIR 2019 SC 1857

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Vashu Deo Mishra,
learned counsel for the appellant, Sri
Bhupendra Nath Tripathi, learned counsel
for the complainant, Ms. Shikha Sinha,
learned Additional Government Advocate