# Om Prakash Kushwaha v. State of U.P

- **Citation:** (2025) 1 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-21
- **Case number:** Criminal Misc. Bail Application No. 35494 of 2024
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-kushwaha-v-state-of-u-p-52896
- **Pages:** 5

## Headnote

A. Criminal Law - Bharatiya Nyaya Sanhita
- Sections 64, 74 & 351 - Evidence
Act,1875 - Section 65B - Rape - CCTV
footage show the presence of applicant
and victim together in a hotel and
WhatsApp chatting proof that applicant
was taking advantage of withdrawing the
case lodged by him against the victim's
brother and used it to make physical
relation
with
her
-
There
is
no
inconsistency in the FIR version and
St.ment of victim u/s 180 and 183 of
BNSS - Effect - Held, from the medical
58 INDIAN LAW REPORTS ALLAHABAD SERIES
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 - WhatsApp chatting,
which is supported by a certificate of
victim u/s 65B of the Indian Evidence Act
also, the aforesaid allegations of the
victim is prima-facie corroborated - 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 - High Court
found no good ground to disbelieve the
St.ment of victim. (Para 6 and 8)

Bail application rejected. (E-1)

## Text

1 All. Om Prakash Kushwaha Vs. State of U.P.
57
The relevant paras of the decision of the
Apex Court is quoted hereunder:-

"4. The opinion of the High
Court, in the impugned order, is that in the
event the High Court granted bail to the
appellant
without
compliance
of
the
conditions specified in the earlier order of
a Coordinate Bench, that would constitute
modification of the order and Section 362
of the Code prohibits such modification of
a judgment or final order.

5. An order for refusal of bail
however,
inherently
carries
certain
characteristics of an interlocutory order in
that certain variation or alteration in the
context in which a bail plea is dismissed
confers on the detained accused right to file
a fresh application for bail on certain
changed circumstances. Thus, an order
rejecting
prayer
for
bail
does
not
disempower the Court from considering
such plea afresh if there is any alteration of
the circumstances. Conditions of bail could
also be varied if a case is made out for
such variation based on that factor.
Prohibition contemplated in Section 362 of
the Code would not apply in such cases.
Hence, we do not think the reasoning on
which the impugned order was passed
rejecting the appellant?s application of bail
can be sustained. The impugned order is
set aside and the matter is remitted to the
High Court. The bail petition of the
appellant before the High Court shall
revive to be examined afresh by the High
Court in the light of our observations made
in this order"

15. In view of the above, taking note
of the fact that the applicant though
released
on
bail
vide
order
dated
12.10.2020 has remained in custody on
account of non-fulfillment of the condition
of providing one surety of his family
member, I am inclined to grant the prayer
for modification of the condition, to meet
the ends of justice.

16. In view of the above, the
modification application stands allowed.

17. Accordingly, in the 4th & 5th line
of the order dated 12.10.2020 is modified
to the extent that the condition mentioned
as "one of the surety should be of his
family member" is hereby deleted.
----------
(2025) 1 ILRA 57
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.01.2025

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 35494 of
2024

Om Prakash Kushwaha ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Himanshu Mishra, Kamlesh Kumar Dwivedi,
Suvansit Kumar Jaiswal

Counsel for the Opposite Party:
G.A., Vijay Kumar Mishra

A. Criminal Law - Bharatiya Nyaya Sanhita
- Sections 64, 74 & 351 - Evidence
Act,1875 - Section 65B - Rape - CCTV
footage show the presence of applicant
and victim together in a hotel and
WhatsApp chatting proof that applicant
was taking advantage of withdrawing the
case lodged by him against the victim's
brother and used it to make physical
relation
with
her
-
There
is
no
inconsistency in the FIR version and
St.ment of victim u/s 180 and 183 of
BNSS - Effect - Held, from the medical
58 INDIAN LAW REPORTS ALLAHABAD SERIES
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 - WhatsApp chatting,
which is supported by a certificate of
victim u/s 65B of the Indian Evidence Act
also, the aforesaid allegations of the
victim is prima-facie corroborated - 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 - High Court
found no good ground to disbelieve the
St.ment of victim. (Para 6 and 8)

Bail application rejected. (E-1)

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. By means of this application under
Section 483 of BNSS, 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. 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
1 All. Om Prakash Kushwaha Vs. State of U.P.
59
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. 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.
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
60 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 selfesteem 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 accusedapplicant
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
1 All. Suraj Kumar @ Vishwapratap Singh Vs. State of U.P. & Ors.
61
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.
----------
(2025) 1 ILRA 61
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2025

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Criminal Misc. Bail Application No. 39835 of
2024

Suraj Kumar @ Vishwapratap Singh
 ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Akhilesh Kumar Dwivedi

Counsel for the Opposite Parties:
R.A. Ram, Shyam Chandra, G.A.

Criminal Law - Bharatiya Nyaya Sanhita,
2023 - Sections 63, 65(2), 351(2) &
332(c) - Rape - The Protection of Children
from Sexual Offences Act, 2012 - Sections
3⁄4, 2(1)d, 29 - Bharatiya Nagarik Suraksha
Sanhita, 2023 - Sections 180, 183 - Bail -
As per FIR, informant woke up in morning,
not find his daughter on bed - Noticed that
another room locked from inside and
when peeped through window, he saw
applicant was committing rape upon his
daughter by pressing her mouth - When
informant shouted and called his wife,
applicant by opening door, ran away by
pushing him extending threat of dire
consequences. (Para 3)

Applicant submitted that FIR was lodged
after delay of 17 hours, without any
plausible explanation, informant in his
St.ment reiterated prosecution case but
there are contradictions in St.ments of
victim. (Para 4)

Held, from perusal of St.ments of victim, it
was clear that applicant had forcibly took
her to another room, bolted room and
committed misdeed with her. (Para 10)

As per medical examination report of
victim, there was no sign of any force was
concerned, it was misconceived as in
supplementary medico-legal examination
report, final opinion was reserved pending
on availability of FSL report, sexual
violence cannot be ruled out - No any
material on record to presume false
implication of applicant and to disbelieve
St.ments of minor victim, thus no any
ground to release applicant on bail. (Para
15, 18)

Bail application rejected. (E-13)

List of Cases cited:
1. Ram Swaroop Vs St. of Raj., 2004 Law Suit
(SC) 293

2. Attorney General for India Vs Satish & anr.,
(2021) 4 SCC 712

3. St. of Punjab Vs Gurmit Singh & ors., (1996)
2 SCC 384

4. St. of Madhya Pradesh Vs Mahendra @ Golu,
(2022) 12 SCC 442