Sarwan Rajbhar vs State Of U.P. And Another
2022 Latest Caselaw 19091 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5015 of 2022
 

 
Appellant :- Sarwan Rajbhar
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Awadhesh Kumar Malviya
 
Counsel for Respondent :- G.A.,Mohammad Asif
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the appellant submits that due to inadvertence, the name of the victim is disclosed in the array of the party, whereas, it should be 'X'.

Learned counsel for the applicant is permitted to make necessary correction in the array of the party during the course of hearing.

Heard Shri Awadhesh Kumar Malviya, learned counsel for the appellant, Sri Mohammad Asif, learned counsel for the respondent no. 2 and Shri Om Prakash Dwivedi, learned A.G.A. for the State.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Sarwan Rajbhar to set aside the impugned order dated 16.06.2022 whereby the Special Judge (SC/ST Act), Ghazipur has rejected the bail application No. 1260 of 2022 of the appellant moved by him in Case Crime No. 118 of 2022, under Sections 354, 323, 504, 506, 376, 511 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Saidpur District- Ghazipur.

Brief facts of the case are that the first information report dated 12.05.2022 was lodged by the victim against the appellant and other co-accused Sanoj Kumar and one unknown person stating that marriage of the victim was solemnized on 18.06.2020 with one Sabhajit Kumar. On 05.05.2022 at 10.00 P.M. when she went to defecate in the field, the appellant and the other co-accused persons came there on their motorcycle and indulged in obscene acts with her, and abused her with caste derogatory words and also committed marpit with her and also attempted to commit rape her, when she protested. On her crying her brother in law and other in laws reached there and save the victim against the appellant and co-accused Sanoj Kumar and one unknown persons. Later on, they snatched her mobile and fled away from the spot after leaving the motorcycle. Victim informed the police by dialing 112 number, after that police came there, due to saddened by the incident, husband and other in laws of the victim called her parents and send the victim to her parental house.

After lodging the first information report, medical examination of the victim was conducted on 13.05.2022. Statement of the victim under Sections 161 and 164 Cr.P.C. was recorded on 15.05.2022 and 19.05.2022 respectively. After recording the statements of eye witness Dimple brother-in-law of the victim and the other prosecution witnesses, charge sheet had been submitted against the appellant and other co-accused. The appellant was arrested on 27.05.2022.

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 as per medical report of the victim, complaint of pain on left wrist and lower back was found but no external injury was found on the body of the victim. It is further submitted that there is a material contradictions between the allegations of the first information report, statement of the victim recorded under Sections 161 and 164 of Cr.P.C. It is further submitted that as per statement of the victim recorded under Section 161 of Cr.P.C. main role has been assigned to present appellant and there is no other allegation has been made. It is further submitted that eye witness assigned the main role of committing rape to co-accused Sanoj Kumar.

It has also been submitted that co-accused, Sanoj Kumar having similar role, has already been enlarged on bail by the Coordinate Bench of this Court vide order dated 15.09.2022 in Criminal Misc. Bail Application No. 32289 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 27.05.2022. 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. as well as learned counsel for the respondent no. 2 have 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) As per medical report of the victim, complaint of pain on left wrist and lower back was found but no external injury was found on the body of the victim.

(b) There is a material contradictions between the allegations of the first information report, statement of the victim recorded under Sections 161 and 164 of Cr.P.C.

(c) Eye witness assigned the main role of committing rape to co-accused Sanoj Kumar.

(d) Co-accused, Sanoj Kumar having similar role, has already been enlarged on bail by the Coordinate Bench of this Court.

(e) The appellant is languishing in jail since 27.05.2022.

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 16.06.2022 is set aside.

Let appellant/applicant, Sarwan Rajbhar 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/endeavour 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 :- 29.11.2022

Ishan