Allahabad High Court
Vijay @ Munnu vs State Of U.P. on 17 May, 2017
Bench: Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 11
Case :- CRIMINAL APPEAL No. - 2263 of 2014
Appellant :- Vijay @ Munnu
Respondent :- State Of U.P.
Counsel for Appellant :- Nar Singh Dixit,P.K. Singh,Rajiv Dwivedi,Rakesh Kumar
Counsel for Respondent :- Govt. Advocate
Hon'ble Abhai Kumar,J.
Re: Criminal Misc. Second Bail Application No. 112060 of 2014.
This appeal has been preferred by the appellant against the judgement of conviction dated 4.4.2014 passed by the Additional Sessions Judge, Court No. 4 Chitrakoot in Session Trial No. 38 of 2013( State Versus Vijay alias Munnu) arising out of Case Crime No. 126 of 2012, under Sections 452,376,504,506 IPC, P.S. Raipura, District Chitrakoo whereby appellant was convicted under section 452,376,504,506 IPC.
Considered the prayer for bail. This is second bail application. The first bail application was dismissed on 5.8.2014 in default.
Heard the learned counsel for the appellant as well as the learned A.G.A. and perused the record.
It is contended by the learned counsel that the prosecutrix P.W. 2 and Shivam, P.W. 6 are said to be the witnesses of the incident. It is further submitted by the learned counsel that in her statement under section 164 Cr.P.C. the prosecutrix has clearly stated that she could not recognize the culprit at the time of the incident. The learned trial court has also observed that P.W. 6 Shivam was not familiar with the appellant and the house of the appellant was far away from the house of the victim. It is also stated by P.W. 6 that the appellant not used to visit near the place of victim house. It is further submitted that no mark of injury on the body of the victim was found by the doctor at the time of incident and as per the medical report victim was aged about 15-16 years. In case, two years is added to that, then the victim was major at the time of the incident. It is further submitted by the learned counsel that the appellant is in jail for the last more than three years during the present appeal. He was also in jail for almost one year before the trial court and he should be given the benefit of section 436-A Cr.P.C.
Learned A.G.A for the State has opposed the prayer for bail but could not dispute the aforesaid facts.
The learned trial court has not considered the statement of the victim recorded under section 164 Cr.P.C. regarding non recognizing the culprit at the time of the incident and this point has not been met properly. In case, the victim has not recognized the culprit at the time of the incident then how P.W. 6 Shivam, her younger brother, could recognize the culprit, is not made clear.
Considering the facts and circumstances of the case narrated above and without expressing any opinion regarding the merit of the case also seeing the period of detention of the appellant and seeing the fact that the appeal is not likely to be taken up in near future, the appellant may be set at liberty. Accordingly, the bail application is allowed.
Let the appellant Vijay @ Munnu, convicted in S.T. No. 38 of 2013(State of U.P. Vs. Vijai @ Munnu), arising out of Case crime No. 126 of 2012 under sections 452,376,504,506 I.P.C.P,S, Raipura, district Chitrakoot, 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 on the undertaking that he shall appear before this court whenever his presence is required.
However, it is made clear that no opinion regarding the merit of the case is being expressed which will effect the merit of the case during the argument of the appeal.
Summon the lower court record if not already summoned. In case, the record has already been received, the office is directed to start the proceedings for making the paper book.
List in due course.
Order Date :- 17.5.2017
N.A.
