Allahabad High Court
Dharmendra Tiwari vs State Of U.P. on 28 April, 2022
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- CRIMINAL APPEAL No. - 5717 of 2021
Appellant :- Dharmendra Tiwari
Respondent :- State of U.P.
Counsel for Appellant :- Ashok Kumar Singh
Counsel for Respondent :- G.A.
Hon'ble Raj Beer Singh,J.
Order on Criminal Misc. Bail Application under Section 389(1) Cr.P.C
Heard learned counsel for the appellant/applicant and learned AGA for the State and perused the record.
This application has been filed on behalf of the appellant/applicant for suspension of sentence and grant of bail during pendency of this appeal.
By the judgement and order dated 17.11.2021, passed by the trial Court, the appellant has been convicted under Section 363 IPC and sentenced to four years rigorous imprisonment along with fine of Rs. 5000/-.
It has been argued by the learned counsel for appellant/applicant that the allegation that appellant was involved in kidnapping of the victim girl, is thoroughly false. The complainant/PW-1 Rajman Vishwakarma and PW-2 Dhananjay Kumar Dubey are not eye-witness of alleged incident. The statement of PW-5 Pankaj Dubey was also referred, and it has been submitted that his statement is also not reliable and that the trial Court has not appreciated the evidence in correct perspective. Learned counsel further submitted that the victim girl has already been recovered but this fact could not be brought into the notice of trial Court. The statement of PW-3 S.I. Uday Pratap Singh was referred, wherein, he has has stated that till completion of investigation, victim girl was not recovered, whereas the fact is that the victim girl was recovered by the police on 15.05.2018 and that in her statement, recorded under Section 161 Cr.P.C., she has clearly stated that she was having affair with co-accused Ganesh Mishra and she has gone with him with her own free will. The statement of victim was also recorded under Section 164 Cr.P.C., wherein she has clearly stated that she was in love with co-accused Ganesh Mishra and thus, she has gone to Mumbai with him and they have married each other and that her grand-father has lodged this case in the year 2013. Learned counsel has referred the recovery memo and statement of victim, recorded under Section 161 and 164 Cr.P.C., which have been annexed along with this appeal. The instant case was registered in the year 2013 and the judgment of trial Court has been passed on 17.11.2021 but the investigating Officer did not file any report before the trial Court regarding the recovery of victim girl and her statement was not brought to the knowledge of the trial Court. Learned counsel submitted that in view of recovery of victim girl and her statement, no case at all is made out against the appellant. It has further been submitted that during trial and the appellant was on bail and he has never misused the liberty of bail.
Learned A.G.A. has opposed the prayer for bail.
Considering the submissions of learned counsel for the parties, quantum of sentence awarded to the appellant and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the view that appellant/applicant is entitled to be released on bail. Hence, the bail application is hereby allowed.
Let the appellant/applicant Dharmendra Tiwari convicted and sentenced in Session Trial No. 359 of 2014 (State of U.P. vs. Dharmendra Tiwari) Case Crime No. 273 of 2013, under Sections 363, 366 IPC, P.S. Phoolpur, District Varanasi, be released on bail on his furnishing a personal bond with two sureties (one should be of his family member) each in the like amount to the satisfaction of the court concerned.
On acceptance of bail bonds and personal bond, the court below shall transmit photostat copies thereof to this Court for being kept on the record.
List in due course.
Order Date :- 28.4.2022
A. Tripathi
