Allahabad High Court
Mohd. Sharif @ Mote vs State Of U.P. And Another on 9 July, 2019
Bench: Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL APPEAL No. - 4429 of 2017
Appellant :- Mohd. Sharif @ Mote
Respondent :- State Of U.P. And Another
Counsel for Appellant :- Tripurari Pal
Counsel for Respondent :- G.A.,Jeet Bahadur Singh
Hon'ble Rajiv Gupta,J.
Counter affidavit filed by learned AGA, is taken on record.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
The present criminal appeal has been filed U/s 14(A)(2) of S.C./S.T. Act against the order dated 25.07.2017, by which the bail application of the applicant in Criminal Misc. Bail Application No. 2740 of 2017, (Mohd. Sharif @ Mote vs. State of U.P.) arising out of Case Crime No. 33 of 2017, under Sections 363, 366, 368, 376D, 343, 506, 120B IPC and Section 3/4 Protection of Children from Sexual Offence Act and 3 (2) (5) of Scheduled Castes and Scheduled Trives (Prevention of Atrocities) Act, P.S. Kotwali, District Aligarh, has been rejected vide order dated 25.07.2017.
In para 3 of the counter affidavit sworn by Shri Devi Gula, Circle Officer, Balla, District Aligarh, it has been stated that the notice has been given to the complainant regarding pendency of the instant criminal appeal and photocopy of the said notice has been annexed as annexure-1 of the counter affidavit. However, no one has appeared on behalf his behalf.
Learned counsel for the accused-appellant has submitted that appellant is innocent and has been falsely implicated in the present case. It has been further submitted that First Information Report was got registered by opposite party no. 2, Ram Singh on 09.02.2017 at 2.30 p.m. alleging therein that on 03.02.2017 at about 8.15 p.m. in the night, minor daughter of complainant, namely, Shabnam had gone to attend the call of nature, whereby she was kidnapped by appellant and one Mohd. Shahid by extending threat of her life. However, her daughter remained in the company of the accused persons from 03.02.2017 to 09.02.2017 almost 7 days and both of them had outraged her modesty and after her returning back the FIR was lodged. He submitted that as per the medical report, the victim was aged about 18 years and there is no external or internal injury found on her person. Her statement was recorded under Section 164 Cr.P.C. in which she has reiterated the same story as mentioned in the FIR with the addition that her mouth was stuffed by the cloth and both of them have committed rape upon her. He next submitted that she remained in the company with appellant and one co-accused Shahid about 7 days. She has not raised any alarm and then the FIR lodged after 7 days of the incident when the victim has been recovered. He next submitted that the appellant is in jail since 10.02.2017 and the charge sheet has also been submitted.
From perusal of the statement under Section 164 Cr.P.C. and the allegations made in the FIR also there is absolutely no allegations that the appellant has committed present offence on account of fact that the victim belongs to scheduled castes.
Per contra, learned A.G.A. has opposed the prayer for bail but could not dispute the aforesaid fact.
Considering the age of the victim and the victim remain in the company of the appellant for 7 days, the appellant is entitled to be released on bail.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, I find that the court below has acted wrongly in rejecting the bail application and the impugned order dated 25.07.2017 is liable to be set-aside and appeal is liable to be allowed.
The appeal is allowed. The impugned order dated 25.07.2017 passed by Special Judge (SC/ST Act), Aligarh is set-aside and the bail application of appellant stands allowed.
Let the appellant Mohd. Sharif @ Mote be released on bail in Case Crime No. 33 of 2017, under Sections 363, 366, 368, 376D, 343, 506, 120B IPC and Section 3/4 Protection of Children from Sexual Offence Act and 3 (2) (5) of Scheduled Castes and Scheduled Trives (Prevention of Atrocities) Act, P.S. Kotwali, District Aligarh, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Order Date :- 9.7.2019
v.k.updh.
