Allahabad High Court
Kishan 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. - 5346 of 2018
Appellant :- Kishan
Respondent :- State Of U.P. And Another
Counsel for Appellant :- Jai Shanker Audichya,Ajay Kumar Mishra
Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
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 28.08.2018 passed by IInd Additional Sessions Judge/Special Judge (SC/ST Act) (P.A.Act), Bulandshahr, by which the bail application of the applicant in Criminal Misc. Bail Application No. 2554 of 2018, (Kishan vs. State of U.P.) arising out of Case Crime No. 176 of 2018, under Sections 376, 504, 506 IPC and Section 3 (2) (5) of Scheduled Castes and Scheduled Trives (Prevention of Atrocities) Act, P.S. Pahasu, District Bulandshahr, has been rejected vide order dated 28.08.2018.
In para 3 of the counter affidavit sworn by Shri Raghvendra Kumar Mishra, Circle Officer, Dibai, District Bulandshahr, it has been stated that the notice has been given to the complainant regarding pendency of the instant criminal appeal before this Court and photocopy of the said notice has been annexed as annexure-1 of the counter affidavit. However, no one has appeared on her 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 the complainant is married lady and aged about 24 years. He next submitted that though the victim in her statement recorded under Section 164 Cr.P.C. stated that it was the appellant, who had committed rape upon her. However, during course of trial she has not supported the prosecution version and has been declared hostile. She has clearly stated in her statement that the allegation made in the FIR are not correct and countered the FIR version, and stated that she had not nominated appellant Kishan to have committed rape upon her. In the cross examination made by defence she has stated that the statement recorded under Section 164 Cr.P.C. by the Magistrate have been made by her under the pressure of the police. He next submitted that the appellant is in jail since 25.06.2018.
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.
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, the argument of the counsel for the appellant has substance to release the appellant on bail. The impugned order dated 28.08.2018 is liable to be set-aside and appeal is liable to be allowed.
In view of the above, the appeal is allowed. The impugned order dated 28.08.2018 passed by Special Judge (SC/ST Act), Bulandshahr, is set-aside and the bail application of appellant stands allowed.
Let the appellant Kishan be released on bail in Case Crime No. 176 of 2018, under Sections 376, 504, 506 IPC and Section 3 (2) (5) of Scheduled Castes and Scheduled Trives (Prevention of Atrocities) Act, P.S. Pahasu, District Bulandshahr, 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.
