# Shahil v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1823
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Crl. Misc. Bail Application No. 55033 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahil-v-state-of-u-p-ors-50271
- **Pages:** 4

## Headnote

Criminal Law - Criminal Procedure Code,
1973- Section 439 - Indian Penal Code,
1860 -Sections 328, 341, 363, 376 & 506 -
-The Protection of Children from Sexual
Offences Act, 2012 - Section 3/4 - The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2)(5)- victim and her mother
declared hostile during trial- victim did
not support the prosecution case under
Section 137 of the Indian Evidence Act-
conclusion or inference from evidence
shall be drawn- after considering the
evidence and attending circumstances-in
entirety- hostility of the victim in her
cross-examination in heinous offences like
rape, murder, etc.- no ground for bail- Bail
Application rejected.

HELD: It is well settled that the conclusion or
inference from the evidence of the witness shall
be drawn considering his/her examination-inchief,
crossexamination
as
well
as
reexamination in its entirety in the light of
attending facts and circumstances of the case
and not by picking out one or two sentence
from here and there. This Court in exercise of
power under Section 439 Cr.P.C. at this midstage of the trial which is going on does not
deem it appropriate to discuss and evaluate the
evidence of the victim and other prosecution
witnesses in detail as the allegation and defence
of the accused-applicant is still open to be urged
before the trial Court. However, this Court is of
the view that hostility of the victim in her crossexamination in heinous offences like rape,
murder, etc. is no ground for bail.

Bail application rejected. (E-14)

## Text

5 All. Shahil Vs. State of U.P. & Ors.
1823
judgement in Form 4A before the Trial
Court.

15. Learned Counsel for the defendant
appearing before this Court has made a
statement at the Bar that the defendant has
been served with summons for judgment.
Accordingly, the defendant will have ten
days time from the date of production of a
certified copy of this order before the Trial
Court to apply for leave to defend.

16. The application for leave to defend,
when made, as directed above, shall be heard
and disposed of by the learned Trial Judge, in
accordance with provisions of sub-rule (5) of
Rule 3 of Order XXXVII of the Code.
Needless to say that the application for leave,
if made, shall be decided with all promptitude
and the suit shall not be adjourned on any
pretext.
The
impugned
order
dated
21.11.2022 is set aside to the extent it refuses
leave to defend and it is ordered in the terms
indicated hereinabove.

17. This revision is allowed. Costs
easy.
----------
(2023) 5 ILRA 1823
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 55033 of 2022

Shahil ...Applicant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Applicant:
Sri Inder Pal Singh Tomar, Anjali Singh Tomar,
Sri Gaurav Singh Tomar

Counsel for the Respondents:
G.A.
Criminal Law - Criminal Procedure Code,
1973- Section 439 - Indian Penal Code,
1860 -Sections 328, 341, 363, 376 & 506 -
-The Protection of Children from Sexual
Offences Act, 2012 - Section 3/4 - The
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2)(5)- victim and her mother
declared hostile during trial- victim did
not support the prosecution case under
Section 137 of the Indian Evidence Act-
conclusion or inference from evidence
shall be drawn- after considering the
evidence and attending circumstances-in
entirety- hostility of the victim in her
cross-examination in heinous offences like
rape, murder, etc.- no ground for bail- Bail
Application rejected.

HELD: It is well settled that the conclusion or
inference from the evidence of the witness shall
be drawn considering his/her examination-inchief,
crossexamination
as
well
as
reexamination in its entirety in the light of
attending facts and circumstances of the case
and not by picking out one or two sentence
from here and there. This Court in exercise of
power under Section 439 Cr.P.C. at this midstage of the trial which is going on does not
deem it appropriate to discuss and evaluate the
evidence of the victim and other prosecution
witnesses in detail as the allegation and defence
of the accused-applicant is still open to be urged
before the trial Court. However, this Court is of
the view that hostility of the victim in her crossexamination in heinous offences like rape,
murder, etc. is no ground for bail.

Bail application rejected. (E-14)

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

1. Heard Mr. Indra Pal Singh Tomar,
learned counsel for the applicant and Mr.
Virendra
Kumar
Maurya,
learned
Additional
Government
Advocate
representing the State. As per office report
dated 21.02.2023, notice issued vide order
of this Court dated 24.01.2023 to the victim
as well as Child Welfare Committee has
1824 INDIAN LAW REPORTS ALLAHABAD SERIES
been served, but none appears on their
behalf.

2. By means of this application under
Section 439 of Cr.P.C., applicant Shahil,
who is involved in Case Crime No. 341 of
2021, under Sections 328, 341, 363, 376,
506 IPC, Section 3/4 POCSO Act and
Section 3(2)(5) SC/ST Act, police station
Bhojpur,
district
Ghaziabad,
seeks
enlargement on bail during the pendency of
trial.

3. As per prosecution case, in brief,
victim lodged a first information report on
07.06.2021 under Sections 341, 506 IPC
against present applicant Shahil and his
parents
Ismail
and
Noori
with
the
allegation inter alia that they used to extend
threat
for
her
abduction.
During
investigation, on 14.09.2021, after four
months of the F.I.R., statement under
Section 161 Cr.P.C. of the victim was
recorded in which, she has stated inter alia
that on 05.05.2021 at 06:45 P.M., when she
was returning from her farm, two persons
out of whom, one was the present applicant
Shahil came there and they took her to
forest after getting her to smell some
intoxicated
substance
where
they
committed rape on her. At that time, she
was feeling pain, but she was in a state of
intoxication. Thereafter, applicant took her
to a school situated in Kalchina by foot.
Other boy was driving the motorcycle
slowly. On the way seeing them, some boys
of the village created rucks and also made
videos. The applicant was also assaulted by
the villagers then he informed his parents
on which his family members reached there
and they took the applicant as well as the
victim to the police station where Shahil
was arrested and the victim was allowed to
go to her house. It is next submitted that
statement under Section 164 Cr.P.C. of the
victim was recorded on 27.05.2021 after 04
months 22 days, in which also, she has
narrated the same story. After culmination
of investigation, charge-sheet under Section
328, 341, 363, 376 and 506 IPC, Section
3/4 POCSO Act and Section 3(2)(5) SC/ST
Act has been submitted against the
applicant only.

4. Main substratum of argument of
learned counsel for the applicant is that
before the trial Court, statement of the
victim and her mother have been recorded
as PW-1 and PW-2 on 22.05.2022 and
15.03.2023, respectively, but they have
been declared hostile. With regard to
statement of victim, much emphasis has
been given by contending that the victim
has not supported the prosecution case
under Section 137 of Indian Evidence Act,
then prosecution has re-examined the
victim under Section 138 of Indian
Evidence Act, in which, same story has
been narrated by the victim, hence, the
victim shall deemed to be declared hostile.
The applicant does not have any criminal
history to his credit and is languishing in
jail since 21.10.2021, therefore, applicant
may be released on bail.

5. Per contra, learned A.G.A. for the State
vehemently opposed the prayer for bail of
the applicant by contending that date of
birth of the victim is 27.02.2005 and on the
day of the incident, she was minor child.
The victim in her statements under Section
161 Cr.P.C. and 164 Cr.P.C. has made
allegation of rape against the applicant.
Bail application of the applicant has been
rejected
twice
on
15.11.2021
and
18.01.2022 by the trial Court. Thereafter
applicant has filed Criminal Appeal No.
2519 of 2022 before this Court but learned
counsel for the applicant after some
argument did not press the appeal and at his
5 All. Shahil Vs. State of U.P. & Ors.
1825
request, the same was dismissed as
withdrawn vide order dated 11.11.2022. It
is also submitted that the victim has not
been declared hostile by the trial Court and
in this regard, it is pointed out that the
examination-in-chief of the victim in part
was recorded on 26.05.2022, in which she
has made allegation of rape against the
applicant,
thereafter
she
was
again
examined on 21.07.2022, in which she has
proved her statement under Section 164
Cr.P.C. which was exhibited as Exhibit Ka1, thereafter her cross-examination has
been done after five months on 01.03.2023,
in which she has given contradictory
statement. Under the circumstances, due to
long gap of five months between the
examination-in-chief
and
crossexamination of the victim, possibility of
winning over the victim from the accused
side cannot be ruled out. It is also
submitted that in the cases where rape
victim does not support the prosecution
case in her cross examination after long gap
after
her
examination-in-chief,
many
secrets are hidden behind it. Lastly, it is
submitted that under the facts of the case,
bail application of the applicant in such a
heinous crime is liable to be rejected.

6. Having heard learned counsel for
the parties and examined the matter in its
entirety, I find substance in the submission
of learned A.G.A. that the victim in her
examination-in-chief has clearly made
allegation of rape against the applicant and
also proved her statement under Section
164 Cr.P.C. supporting the prosecution case
and she has not been declared hostile by the
Court. Right from beginning of the case till
the completion of victim's examination-inchief, her stand was intact but later on
when she was cross-examined and reexamined after about five months of her
examination-in-chief, she did not support
the prosecution case. Thereafter mother of
the victim who has been examined as PW-2
on 15.03.2023 before the trial Court has
been declared hostile. These circumstances
prima-facie indicate the external influences
over the victim.

7. It is well settled that the conclusion
or inference from the evidence of the
witness shall be drawn considering his/her
examination-in-chief, cross-examination as
well as re-examination in its entirety in the
light of attending facts and circumstances
of the case and not by picking out one or
two sentence from here and there. This
Court in exercise of power under Section
439 Cr.P.C. at this mid-stage of the trial
which is going on does not deem it
appropriate to discuss and evaluate the
evidence
of
the
victim
and
other
prosecution witnesses in detail as the
allegation and defence of the accusedapplicant is still open to be urged before the
trial Court. However, this Court is of the
view that hostility of the victim in her
cross-examination in heinous offences like
rape, murder, etc. is no ground for bail.

8. In the light of above discussion,
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, gravity
of offence, role assigned to applicant and
severity of punishment, I do not find any
good ground to release the applicant on
bail.

9. Accordingly, the bail application is
rejected.

10. 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. Trial Court is
1826 INDIAN LAW REPORTS ALLAHABAD SERIES
expected to conclude the trial of the
applicant expeditiously without granting
any unnecessary adjournment to either of
the parties.

11. Let a copy of this order be sent to
the
victim
through
Child
Welfare
Committee, Ghaziabad as well as to the
Trial Court for information within two
weeks.
----------
(2023) 5 ILRA 1826
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.05.2023

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. II Bail Application No. 53377 of 2022

Rajkaran Patel ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Ram Autar Verma, Sri Vivek Mishra, Sri
Amarjeet Singh

Counsel for the Respondent:
G.A., Sri Sukhvir Singh, Sri Vinod Kumar Sahu

Criminal Law - Criminal Procedure Code,
1973 - Section 439 - second bail application-
Indian Penal Code, 1860 - Sections 366,
376, 354-A, 328, 323, 504 & 506 - second
bail application of accused is not barred and
is maintainable- second bail application is
always
considered-on
fresh
grounds
available to the accused after rejection of
bail application- fresh argument in second
bail application not allowed-if available at
the time of moving and rejection of first bail
application- no fresh and new ground
available
in
the
present
second
bail
application-
substantial
change
in
the
circumstance so far as merit of the case is
concerned- Bail application rejected. (Paras
13, 16, 17, 19 and 24)
HELD: Although a second bail application on
behalf of the accused is not barred and is
maintainable but considerations of the grounds
of bail are the factors to be taken into account
in it. A second bail application is always
considered on fresh and new grounds available
to the accused after rejection of the first bail
application. It cannot be said that a second bail
application would not be maintainable. The
maintainability of such bail application is there
but consideration of the prayer for bail is subject
to the availability of fresh and new grounds
which if not available would render reviewing
the earlier order rejecting the bail application. In
the case of Babu Singh (supra), the Court was
considering a bail application of an accused who
was acquitted by the Sessions Court against
which the St.had filed an appeal against
acquittal in the High Court which was successful
and the findings of the Sessions Judge were
reversed holding the accused persons guilty and
sentencing them for the offences. Against the
said judgment and order of the High Court, a
statutory appeal was carried to the Apex Court.
Before the Apex Court, a second bail application
was filed which was the consideration in which
the said judgment and order has been passed.
The
Apex
Court
with
regards
to
the
maintainability of a second bail application held
that an order refusing an application for bail
does not necessarily preclude another, on a later
occasion,
giving
more
materials,
further
developments
and
different
considerations.
(Para 13)

In so far as the part of the maintainability of a
second bail application is concerned, it is no
more res-integra that the same is maintainable.
The question which arises is whether without
any fresh new and changed circumstances, a
Court should consider a subsequent bail
application ignoring its previous order rejecting
the previous bail application or not. (Para 16)

In the opinion of the Court, the same would not
be possible. A subsequent bail application is
maintainable but consideration of the prayer of
bail would depend on the facts as to whether
fresh and new grounds have been pleaded and
are available or not. (Para 17)

Considering the arguments of learned counsels
for the parties, perusing the records and the law