Shyam Prakash Dwivedi vs State Of Uttar Pradesh

Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Renu Singh, learned counsel for the applicant, Sri T.P. Singh, learned Senior Advocate assisted by Sri Narendra Singh, learned counsel for the informant, learned A.G.A and gone through the record.

This bail application has been moved on behalf of accused-applicant- Shyam Prakash Dwivedi, who is involved in case crime no. 704 of 2020 under Section 376D, 506, 328 I.P.C., Police Station- Colonelganj, District- Prayagraj.

Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the case; that as per the FIR dated 14.09.2020 it is alleged that prosecutrix Priyanshi Mishra came in contact with applicant through co-accused Dr. Anil Dwivedi in relation to sale of her property situated in district- Pratapgarh and several time she was raped by co-accused Dr. Anil Dwivedi and some time along with the applicant; that as per the FIR incident of rape has been committed on 28.10.2019, then 17.11.2019, 26.11.2019, 4.12.2019 and on 8.3.2020 but the FIR was lodged after unexplained inordinate delay; that as per medical report of the victim she is major and there is no sign of use of force upon her; that from perusal of FIR as well as statement of prosecutrix (victim) recorded under Section 161 and 164 Cr.P.C. shows that she is major and when she was allegedly raped on different places, she herself went either in hotel and hospital or at the resident of co-accused Dr. Anil Dwivedi, which clearly shows that prosecutrix was consenting party. It is highly improbable that accused would commit rape on pistol point with the victim who was very cordial at phone call with the accused applicant before and after the incident; that the consent of the prosecutrix also finds support from call recording between the applicant and prosecutrix, copy of the same is available at annexure-7 to the affidavit filed in support of the bail application; extract of the conversation between the applicant and the victim dated 9.3.2020 is reproduce hereinbelow:

प्रियांशी मिश्रा व डा0 श्याम प्रकाश द्विवेदी की काल डिटेल का विवरणः- दिनांकः- 09.03.2020 समय:- अपरान्ह् 04.44 मो0-8957940780 ष् प्रियांशीः- हैलो। डा0 श्यामः- हैलो। प्रियांशीः- आप काॅल कर रहे थे हमको? डा0 श्यामः- हां कल बताते है? प्रियांशीः- जी जी। डा0 श्यामः- आज क्या प्रोग्राम है? प्रियांशीः- कुछ नहीं, मेरी तबियत थोड़ी ठीक नहीं है, मैं तो नहीं आ पाऊंगी, आज आना चाहें तो आ सकते है। डा0 श्यामः- घर पर तो सब है ना? प्रियांशीः- नहीं कोई नही है। डा0 श्यामः- आस पडोस में लोग होंगे? प्रियांशीः- तो आपको आस- पडोस से क्या मतलब है, जब मुझे मतलब नहीं है तो आपको क्या मतलब है। डा0 श्यामः- कब तक आयेगे सब? प्रियांशीः- भाई बहन है नहीं मेरे, मम्मी- पापा बाहर गये हुए है। डा0 श्यामः-कहां? प्रियांशीः- बाहर गये हुए है, मार्केट करने के लिए, आने में आठ सा डा0 श्यामः- पक्का? प्रियांशीः- हां पक्का, तो इस हिसाब से मै तो नहीं आ पाऊंगी, आप आना चाहे तो आप आ सकते है। डा0 श्यामः-प्यार से बुलाये तो चले आयेंगे, इसमें क्या है। प्रियांशीः-अब आपकी इच्छा। आप आना चाहें तो आ सकते है। डा0 श्यामः-कहां है घर? प्रियांशीः- आपने बेली रोड देखी है, बेली से जब आप जगराम चैराहे की तरफ आते है, तो बी,एस,ए आॅफिस पड़ता है। वहां लालजी शुक्ला आवास का बोर्ड लगा हुआ है। वही पे पहुंच कर हमें फोन करिये। डा0 श्यामः-ह्वाट्सऐप्प लोकेशन भेज दो, ठीक है। प्रियांशीः-मै आपको बता तो रही हूॅ ना। डा0 श्यामः-ह्वाट्सऐप्प लोकेशन भेजने में क्या है? मै जल्दी आ जाउंगा। प्रियांशीः-ठीक है।"

That the FIR itself shows that there is money transaction between the co-accused Dr. Anil Dwivedi and the prosecutrix's mother by way of cheque and cash. It is lastly contended that the accused applicant is languishing in jail since 30.10.2020 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial and thus, the applicant is entitled for indulgence.

Learned counsel for the informant and learned A.G.A has opposed the prayer for bail by submitting that the delay in lodging the FIR is well explained as the applicant is high handed man and the informant was under threat of life; that the applicant and the co-accused Dr. Anil Dwivedi has taken disadvantage of financial crises prevailing in the family of the informant and due to their high political influence the informant has been raped under a threat to her life and her family; that the informant has been continuously approaching the police authorities to take action against the applicant then to mount pressure the applicant and co-accused by way of hatching conspiracy by a professional killer committed murder of the only brother of the informant namely Ritesh Mishra on 18.02.2021, who went to Pune (Maharashtra) in January 2021 for pursuing his studies of M.B.A; that during course of investigation, the Investigating Officer collected sufficient credible evidence against the applicant and co-accused Dr. Anil Dwivedi and submitted the charge sheet no. 548 of 2020 dated 26.11.2020 under Section 376-D, 328, 506 I.P.C.; that the applicant doesn't deserve to be released on bail and his bail application is liable to be rejected.

Keeping in view the nature of offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without touching the merits of the case, the accused applicant is entitled for bail.

Let the above mentioned applicant involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-

The applicant shall not tamper with the prosecution evidence, shall cooperate in the investigation or trial and will not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

However, if due to Covind-19 pandemic, the Sub-ordinate Court is under lockdown, the applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

It is made clear that in the event the Sub-ordinate Court is functional as usual then the normal procedure/ mode of filing bail bonds and two sureties each in the like amount to the satisfaction of the Court concerned will be adopted.

It is clarified that the discussion, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.