HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 4426 of 2011 Petitioner :- Mohammad Afsan Respondent :- State Of U.P. Petitioner Counsel :- Mahtab Alam Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
Heard learned counsel for the appellant and learned AGA and perused the impugned judgement rendered by the learned Additional Sessions Judge, Court No. 5, Allahabad in Sessions Trial No. 773 of 2010.
Admit. Summon lower court record.
Learned counsel for the appellant submitted that the appellant was on bail during the trial and never abused the same. The maximum sentence imposed on the appellant is of seven years under section 376 IPC. It was further contended that the prosecutrix was major on the date of occurrence. She did not support the prosecution story during the trial and stated that the appellant had not committed rape on her. It was next submitted that the trial court relied on the statement of the prosecutrix recorded under section 164 of the Code of Criminal Procedure (in short "the Code") and passed the conviction order on that statement. It was further submitted that the statement under section 164 of the Code could be used only to contradict the statement of P.W.-3 and that could not be made as a basis to convict the appellant. The prosecutrix very categorically stated during the trial that she made the statement of section 164 of the Code due to pressure of the police but the trial court over looked that portion of the statement while relying on the statement recorded under section 164 of the Code. It was next submitted that in case the appellant is not released on bail, the appeal would, in due course, become infructuous as there is no hope of an early hearing of the appeal due to heavy dockets.
In my opinion, prima facie, the aforesaid submissions of the learned counsel for the appellant have substance, therefore, it is just and expedient to exercise the discretion in favour of the appellant.
Keeping in view the nature of offence, evidence, complicity of the accused, the severity of punishment and submissions of the learned counsel for the appellant and the learned AGA, I am of the view that the appellant has made out a case for bail.
Let the appellant Mohammad Afsan involved in the aforesaid session trial be released on bail during the pendency of the appeal on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
The realisation of half of the fine shall remain stayed during pendency of the appeal, provided the appellant deposits half of the fine within one month.
On acceptance of bail bonds and personal bonds, the lower court shall transmit photo state copies thereof to this Court for being kept on the record of this appeal.
Let the paper books be prepared.
List the appeal for hearing in due course Order Date :- 2.8.2011 shailesh