Allahabad High Court
Jan Mohammad vs State Of U.P. on 12 June, 2014
Bench: Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- CRIMINAL APPEAL No. - 71 of 2013
Appellant :- Jan Mohammad
Respondent :- State Of U.P.
Counsel for Appellant :- J.K. Gupta,Irshad Ali,P.K. Maurya
Counsel for Respondent :- Govt. Advocate
Hon'ble Shashi Kant,J.
(Criminal Misc. Application No. 95097 of 2013)
This second bail application is moved on behalf of the accused applicant. The first bail application was rejected on merits by Hon'ble Zaki Ullah Khan, J. on 13.5.2013.
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.
This second bail application has been filed on behalf of the applicant in S.T No. 258/2010, arising out of Case Crime No. 406 of 2010, under Section 376/506 I.P.C., P.S. Kumarganj, District Faizabad, whereby, the applicant has been convicted under Section 376/506 (2) I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years and three years imprisonment for section 506 (2) and to pay of find of Rs. 25,000/- and in default of payment of fine, the appellant to further undergo for the period of six months additional imprisonment.
Learned Counsel for the appellant submits that as per the prosecution story itself the alleged occurrence took place on 26.06.2010 at about 10 a.m while F.I.R. for the same had been lodged after on extra ordinary delay of 20 days which created serious doubt to the prosecution story even then the learned trial court has convicted the appellant/applicant without proper appreciation of evidence and facts on record. The learned trial court has not properly appreciated the evidence on record and particularly this vital fact that prosecutrix had not disclosed to her mother on the same day that she was subjected to rape which was very unnatural. The learned trial court has failed to appreciate the medical evidence with regard to the age of the prosecutix which, according to Modi, come to 17-18 years. The learned trial court has also failed to appreciate the medical report of the prosecution which clearly reveals that hymen was torned, two finger easily inserted and there was no opinion regarding rape. The learned trial court has also failed to appreciate that the sole basis of the alleged prosecution story was extra judicial confession allegedly made by the appellant under influence of liquor which is very weak in nature and unbelievable.
In support of his case, learned counsel for the appellant has placed reliance on the decision reported in 2004 13 Supreme Court Cases 526 in the case of Kamal vs. State of Haryana 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 a minor girl. His first bail application was rejected on 13.05.2014 after elaborate discussions made by Hon'ble Zaki Ullah Khan, J. Most of the arguments raised on behalf of the appellant belongs to the facts of the case, which were available to him at the time of making the first bail application. As far 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 upon by the 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 to enhancement of some more period of sentence as 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 keeping in view of the fact that the appellant is in jail since 20.7.2010 and he will be completing four years of imprisonment in July, 2014 against total sentence of sevens years imprisonment which has been granted to him. Therefore, 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 :- 12.6.2014/Monika
