Gulsher (Mubeshar ) vs State Of U.P. And Another
2022 Latest Caselaw 19281 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4006 of 2022
 

 
Appellant :- Gulsher (Mubeshar)
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Matiur Rehman Khan
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri N.I. Zafri, learned Senior Counsel assisted by Sri Matiur Rehman Khan, learned counsel for the appellant and Shri Om Prakash Dwivedi, learned A.G.A. for the State.

Despite service of notice upon respondent no. 2, no one has appeared on her behalf.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Gulsher (Mubeshar) to set aside the impugned order dated 24.05.2022 whereby the Special Judge (SC/ST Act), Firozabad has rejected the bail application No. 1695 of 2022 of the appellant moved by him in Case Crime No. 120 of 2019, under Sections 376-D I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Eka, District-Firozabad.

Brief facts of the case are that the first information report dated 19.06.2019 was lodged by victim against the appellant and two other named co-accused persons on the basis of an application under Section 156(3) of Cr.P.C. stating that on 26.05.2019 at about 08:00 A.M. when she was digging grass, the appellant and other co-accused persons forcibly picked her up and threw her into a drain in the paddy crop in the field of Suresh, where all three took turns raped her and assaulted her cheeks and chest with their teeth.

After lodging the first information report, statements of the victim under Section 161 & 164 of Cr.P.C. were recorded. Medical examination of the victim was conducted on 28.06.2019. As per medical report no external injury was found on the body of the victim. After recording the statements of other prosecution witnesses and after completing the investigation final report had been submitted. On protest petition dated 26.02.2022, the appellant and other co-accused persons were summoned. The appellant was arrested on 14.04.2022.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that victim was 40 years old at the time of the incident and a married lady. It is further submitted that the victim has not supported the prosecution case in her statement recorded as PW-1 before the trial Court, in her cross-examination, wherein she stated that no incident of gang rape committed by the appellant. She further stated that no offence of rape was committed with her.

It has also been submitted that co-accused, Shan Mohammad (Mohammad Talha Khan) having similar role, has already been enlarged on bail by this Court vide order dated23.11.2022 in Criminal Appeal No. 3873 of 2022 and the appellant is also entitled to be enlarged on bail on the ground of parity. It is further submitted that the appellant is languishing in jail since 14.04.2022. The appellant has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) Victim was 40 years old at the time of the incident and a married lady.

(b) Victim has not supported the prosecution case in her cross-examination, wherein she stated that no incident of gang rape committed by the appellant.

(c) No offence of rape was committed with her.

(d) Co-accused, Shan Mohammad (Mohammad Talha Khan) having similar role, has already been enlarged on bail by this Cour.

(e) The appellant is languishing in jail since 14.04.2022.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present criminal appeal is allowed and impugned order dated 24.05.2022 is set aside.

Let appellant/applicant, Gulsher (Mubeshar) be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked;

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 1.12.2022

Ishan