Allahabad High Court
Saddam vs State Of U.P. on 9 July, 2019
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 67
Case :- CRIMINAL APPEAL No. - 2795 of 2019
Appellant :- Saddam
Respondent :- State Of U.P.
Counsel for Appellant :- Rajiv Sisodia,Virendra Singh Tomar
Counsel for Respondent :- G.A.,Pawan Singh Pundir
Hon'ble Rahul Chaturvedi,J.
Crl. Misc. Bail application
Counter affidavit filed today on behalf of the learned AGA is taken on record.
Heard Sri Rajiv Sisodia, learned counsel for the appellant/applicant, Sri Lokesh Kumar, holding brief of Sri Pawan Singh Pundir, learned counsel for private respondent, learned A.G.A. for the respondent and perused the judgment and order dated 06.02.2019 passed by the learned Additional Sessions Judge/Fast Track No. 2, Muzaffarnagar in S.T. Nos. 49 of 2015 and 234 of 2015 arising out of Case Crime No. 383 of 2013, under sections 366, 376, 377, 379 and 506 IPC, P.S. Budhana, District Muzaffarnagar whereby the appellants have been convicted and sentenced under section 376 IPC for period of seven years rigorous imprisonment and a fine of Rs. 7000/-, under section 366 IPC to undergo five years imprisonment and a fine of Rs. 5,000/- and under section 506 IPC to undergo sentence of one year imprisonment and a fine of Rs. 1000/- with default stipulations.All the sentences were ordered to run concurrently therein.
Learned counsel for the appellant/applicant submitted that the allegations levelled against the appellant/applicant is totally vague. The FIR of the alleged incident was got registered by the prosecutrix herself without disclosing as to on what date, time and place she was subjected to sexual assault by the applicant. She herself is a divorcee and mother of a six years old child. Vivid description of the incident was made by mentioning irrelevant features but strangely leaving the most important feature as regard to the date, place and time of the alleged incident/offence. She has also not mentioned the aforesaid vital feature in her testimony. It is further submitted that medical report of the prosecutrix does not establish any injury on her person nor any evidence of rape or unnatural intercourse committed upon her, contrary to the allegation made by the prosecutrix against the appellant/applicant. To buttress his argument, learned counsel for the appellant/applicant has drawn attention of the Court towards the testimony of the accused recorded under section 313 Cr.P.C., the appellant/applicant categorically refuted the allegation that he had performed Nikah with the prosecutrix. The statements of the defence witness nos. 1, 2 and 3 (Pappy, Jabbar and Anurag Tiwari respectively) also do not affirm the allegation of the aforesaid Nikah though it reveals that the accused appellant/appellant were having live-in-relationship for quite some time, prior to the lodging of the FIR and almost in a way refuted the allegations levelled by the prosecutrix and on account of some misunderstanding between the contesting parties, the FIR was lodged against the appellant/applicant by the prosecutrix. He further submitted that statements recorded under sections 161 and 164 Cr.P.C., are dark and vague, as the allegations of rape and sodomy contains no evidence and was not found to be sustainable, giving reason to the trial court for acquittal from the charges under sections 377 and 379 IPC levelled against the appellant/appellant. It is next submitted that the appellant/applicant was on bail during the trial and never abused the same and are on interim bail after conviction. The maximum sentence imposed on the appellant/applicant is of of seven years rigorous imprisonment and a fine of Rs. 7000/- under section 376 IPC. It was further contended that in case the appellant/applicant 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, the aforesaid submissions of the learned counsel for the appellant/applicant has substance, therefore, it is just and expedient to exercise the discretion in favour of the appellant/applicant.
Keeping in view the entire facts and circumstances of the case and submissions of the learned counsel for the appellant/applicant and the learned AGA, the appellant/applicant Saddam is released on bail in the offences, enumerated above, they have been convicted and sentenced in the aforesaid sessions trial, during the pendency of the appeal on his a furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
The realization of half of the fine shall remain stayed during pendency of the appeal, provided the appellant/applicant 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.
Order Date :- 9.7.2019
shailesh
