Allahabad High Court
Ramesh Tiwari vs State Of U.P. on 11 June, 2014
Bench: Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Criminal Misc. Application No. 37270 of f2014
in
Case :- CRIMINAL APPEAL No. - 1905 of 2011
Appellant :- Ramesh Tiwari
Respondent :- State Of U.P.
Counsel for Appellant :- Suresh Singh,Sanjay Tripathi,Shiwa Kant Tiwari
Counsel for Respondent :- Govt. Advocate
Hon'ble Shashi Kant,J.
This is second bail application moved on behalf of the accused applicant. Earlier this application was put before the Hon'ble Aditya Nath Mittal, J on 15.4.2014. Keeping view of the fact that first bail application was rejected by Hon'ble Zaki Ullah Khan, J. on 23.4.2014 on merits, it is directed that bail application be listed before appropriate Bench in the next week. On 30.5.2014, application was put before Hon'ble Zaki Ullah Khan, J. who has released this application and ordered to be listed it before appropriate Bench in the second week of June, 2014. As such, this application has come before this Bench.
I have heard learned counsel for the appellant/applicant, learned A.G.A. for the State of U.P. and learned perused the material available on record.
Learned Counsel for the appellant submits that scriber of the alleged F.I.R. Mohd. Kalid has not been examined as witness in the court whose evidence was very much material about the time and place of alleged arrest of the appellant, copy of the alleged G.D. Rapat has not been proved by its author Vinod Singh,though he was posted in District Lucknow though at the time of the trial. P.W. 5 Durgesh Mishra has deposed that he has arrested the accused persons including the appellant on 28.10.2008 at 12:35 p.m.
Contrary to it, alleged victim Km. Barkha and her mother Smt. Hasina have categorically stated in their evidence that the accused persons were arrested in their presence. It has been put by the prosecution that victim Km. Barkha was medically examined on 28.10.2008 at 12:30 p.m. at Lucknow, but two documents relied upon by the prosecution do not reconcile each other and there may be an inference that either the documents are anti time and manipulated or version of the prosecution witnesses is not reliable. This is admitted case of Km. Barkha and her mother Smt. Hasina that the accused persons were not known to them by name and face, prior to the alleged incident and they came to know their names after arrest of the accused persons on an inquiry made by the police. In such circumstances, the time and place of arrest is very material and decisive point of guilt or innocence of the accused persons, that the accused appellant is innocent. He has not committed rape on alleged victim Km. Barkha Mahawat. The appellant is a youth of about 26 years and languishing in jail since 28.10.2008. He has no criminal antecedents except to present case along with one Gangster Act which has been imposed after lodging of the present case.
In support of his case, learned counsel for the appellant has placed reliance on the decision in the case of Kamal vs. State of Haryana reported in 2004 13 Supreme Court Cases 526 in which it has been held that " the appellant of that case has been convicted under Section 304-B I.P.C. and sentenced to imprisonment for seven years. It appears that so far the appellant has undergone imprisonment for about two years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that bail be granted to the appellant on such conditions as may be imposed by the District and Sessions Judge, Faridabad."
Controverting the above arguments raised on behalf of the appellant, the learned A.G.A. has submitted that the appellant has been convicted for a very serious and heinous offence of rape with Km. Barkha and his first bail application was rejected on merits on 23.04.2014 after elaborate discussions made by Hon'ble Zaki Ullah Khan, J. Most of the arguments raised on behalf of the appellant belongs to that fact of the case which were available to him at the time of making the first bail application. As far as the period of detention is concerned, that may be a factor for consideration to grant of bail but that cannot be a sole ground for granting bail to the appellant. Case law relied by learned counsel for the appellant is not applicable to the facts of this case and second bail application of the accused appellant is liable to be rejected.
Considering the above arguments raised by the learned counsel for the parties and material available on record, I am of the view that except the period of sentence undergone, there is no any new ground in this second bail application. The decision of the above referred case of Kamal Vs. State of Haryana is distinguishable and not applicable to the facts of this case looking to the nature of the crime committed by the appellant. As such, I find no merit in this bail application. It is liable to be rejected and is accordingly rejected.
However, looking to the facts and circumstances of the case and having regard of the fact that the lower court record is available and the appellant had already undergone more than 5 years imprisonment against the total sentence of 10 years imprisonment granted to him and he is in jail since 28.10.2008, I am of the view that hearing of this appeal must be expedited and this appeal may be disposed of at the earliest in the interest of the justice.
List this appeal as peremptorily on 3rd July, 2014 among top of the 5 cases.
Order Date :- 11.6.2014
Monika
