Basant vs State Of U.P.
2011 Latest Caselaw 3027 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 43
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 4245 of 2011
 

 
Petitioner :- Basant
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- K.M. Mishra
 
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. 1, Etawah in Sessions Trial No. 164 of 2010.  

Admit. Summon lower court record. 

Learned counsel for the appellant submitted that  the prosecutrix stated during the trial that she herself proceeded with the appellant and solemnized marriage with him but the learned trial court did not attach any significance to that statement only on the ground that according to the school record the prosecutrix was minor. It was further submitted that there was medical evidence to the effect that the prosecutrix was 18 years of age on the date of the occurrence but the learned trial court disbelieved the same in preference to the school record. It is well settled  that if there is a conflict between the two or more evidence, the evidence in favour of the accused is to be preferred but the learned trial court has not followed this principle. It was further submitted that  appellant was on bail during the trial and never abused the same. The maximum sentence imposed on the appellant is of five years under section 363 IPC . It was lastly contended 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 that the appellant has made out a case for bail.

Let the appellant Basant 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 :- 26.7.2011

shailesh