Lala Jaisawal @ Shivkumar ... vs State Of U.P. And Another
2022 Latest Caselaw 19092 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4827 of 2022
 

 
Appellant :- Lala Jaisawal @ Shivkumar Jaisawal
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Chandra Kant Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J. 

Heard Shri Chandra Kant Tripathi, learned counsel for the appellant and Shri Om Prakash Dwivedi, learned A.G.A. for the State and perused the material on record.

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 Lala Jaiswal @ Shiv Kumar Jaiswal, to set aside the impugned order dated 29.06.2022 whereby the Special Judge (SC/ST Act), Sant Kabir Nagar has rejected the bail application No. 784 of 2022 of the appellant moved by him in Case Crime No. 106 of 2022, under Sections 376, 377, 323, 504, 506 I.P.C. and Section 3(2)(v), 3(1)(w) (ii) of SC/ST Act, Police Station- Mahuli District- Sant Kabir Nagar.

Brief facts of the case are that the first information report dated 14.04.2022 was lodged by the victim against the appellant and his elder brother Awadhesh Jaiswal, stating that on 13.03.2022 at about 07:00 P.M., co-accused Awadhesh Jaiswal entered into the house of the first informant and committed rape her and abused her with caste derogatory words and 4 years prior to lodging of the first information report appellant had committed rape with her at 10.00 P.M. when the victim's husband was not at home. When her husband went to his house to complain about it, they threatened to shut his mouth otherwise to face dire consequences. Appellant use to commit unnatural offence with her. Victim has solemnized marriage with Vinod Singh as love marriage. On 12.04.2022 at about 08:00 P.M. the appellant and other co-accused persons again abused her with caste derogatory words and threatening with dire consequences.

After lodging the first information report, statement of the victim under Section 161 Cr.P.C. was recorded on 14.04.2022. Medical examination of the victim was conducted on 15.04.2022. Statement of the victim under Section 164 Cr.P.C. was recorded on 21.04.2022. After recording the statements of the other prosecution witnesses, charge sheet had been submitted against the appellant and other co-accused on 10.06.2022. The appellant was arrested on 24.06.2022.

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 there is material contradiction between the allegation of the F.I.R., statement of the victim recorded under Sections 161 and 164 of Cr.P.C. firstly she stated that 4 years prior to lodging of the first information report appellant had committed rape with her and on 13.03.2022 the co-accused Awadhesh Jaiswal had committed rape with her; secondly she stated that appellant and other co-accused both have committed rape with her. It is further submitted that as per the statement of the victim recorded under Section 161 of Cr.P.C. there is no version of four years prior to lodging of the first information report with regard to committed rape with her by the appellant has been mentioned.

It is further submitted that as per medical report no external injury was seen on the body of the victim. It is further submitted that the present first information report was lodged in a counter blast case being Case Crime No. 17 of 2022, which was lodged on complaint of the appellant against the husband of the victim under Section 60(1) of U.P. Excise Act, which was registered on 18.01.2022, and 10 ltrs. of adulterated liquor was recovered from the possession of the husband of the victim. The husband of the victim as well as victim were preparing and selling adulterated liquor.

It is further submitted that the appellant is languishing in jail since 24.06.2022. 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) The victim is married lady having three children and her age was 30 years and the age of the appellant was 35 years at the time of incident.

(b) There is material contradiction between the allegation of the F.I.R., statement of the victim recorded under Sections 161 and 164 of Cr.P.C., it would be appropriate to discuss the same at this stage.

(c) As per medical report no external injury was seen on the body of the victim.

(d) The present first information report was lodged in a counter blast case being Case Crime No. 17 of 2022, which was lodged on complaint the appellant against the husband of the victim under Section 60(1) of U.P. Excise Act, which was registered on 18.01.2022.

(e) The appellant is languishing in jail since 24.06.2022.

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 29.06.2022 is set aside.

Let appellant/applicant, Lala Jaiswal @ Shiv Kumar Jaiswal 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