Shubham Pal vs State Of U.P. Thru. Secy. Deptt. Of ...
2023 Latest Caselaw 11694 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 461 of 2023
 

 
Appellant :- Shubham Pal
 
Respondent :- State Of U.P. Thru. Secy. Deptt. Of Home, Lko. And Another
 
Counsel for Appellant :- Rinku Verma,Aakash Srivastava
 
Counsel for Respondent :- G.A.,Mohd. Salman,Mohd. Zishan
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Counter affidavit filed by Sri Ajay Kumar Singh Tomar, learned A.G.A. for the State is taken on record.

2. Heard Sri Akash Srivastava, learned counsel for the appellant, Sri Ajay Kumar Singh Tomar, learned A.G.A. for the State and perused the entire record.

3. This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 31.01.2023 passed by the learned Special Judge, S.C./ S.T. (P.A.) Act/ Additional Sessions Judge, Court No.2, District- Unnao, in Bail Application No.44 of 2023, arising out of Case Crime No.638 of 2022, under Sections 452, 376, 504, 506 I.P.C. and Section 3(4) V SC/ST Act, Police Station- Gangaghat, District- Unnao, whereby the bail application of the appellant has been rejected.

4. Vide order dated notice was directed to be issued to respondent No.2, which has been served upon her as per office report dated 28.03.2023. However, no one has put in appearance on behalf of respondent No.2.

5. Learned counsel for the appellant has submitted that initially a false first information report came to be lodged against the three named accused persons including the present appellant u/s 452, 376, 504, 506 IPC & Section 3(2)(V) SC/ST Act. The present appellant has been implicated in the present case on the basis of false and fabricated facts. The accused/appellant is innocent who has been falsely implicated in this case.

6. His further submission is that from the bare perusal of contents of the FIR, it is revealed that rape upon victim was committed on false promise of marriage. The incident is alleged to have occurred on 24.03.2022 in respect whereof the FIR came to be lodged on 19.12.2022. It is submitted that the victim is major who has not disclosed any reason for inordinate delay in getting the FIR lodged. He has also submitted that the medical report does not support the prosecution story.

7. Learned counsel for the appellant further submitted that in her statement recorded u/s 161 CrPC, the victim is stated to have prior acquaintance with the appellant and she had sexual relationship with the appellant because he extended false promise of marriage. There is variation in her statements recorded u/s 161 CrPC and Section 164 CrPC. In her statement recorded u/s 161 CrPC, the victim has stated that even after refusing to marry with the victim, the appellant committed rape upon the her i.e. the victim. His further submission is that there is nothing on record to show that the appellant ever extended any false promise to marry and the appellant had sexual relation with the victim on the basis of such false promise.

8. On the basis of aforesaid submissions, learned counsel for the appellant submits that the entire prosecution story is false and improbable because of discrepancies appearing in the FIR, statements of victim recorded u/s 161 CrPC and u/s 164 CrP. Learned counsel for the appellant has also submitted that the accused-appellant has no previous criminal history and he is languishing in jail since 20.12.2022

9.Learned counsel for the appellant further submitted that in case, the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully co-operate with the trial proceedings in getting the trial concluded expeditiously. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

10. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed. The impugned order dated 31.01.2023 deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

11. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that the offence committed by the accused-appellant is of grievous nature as he committed rape upon the victim upon false promise of marriage. He further submitted that even after refusing to marry with the victim, the accused-appellant committed rape upon the victim.

12. Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that the incident is alleged to have occurred on 24.03.2022 in respect whereof the FIR came to be lodged on 19.12.2022; the victim is major and she has not disclosed any reason for inordinate delay in getting the FIR; there is variation in her statements recorded u/s 161 CrPC and Section 164 CrPC; the victim is stated to have prior acquaintance with the appellant and she had sexual relationship with the appellant; the medical report of the victim does not support the prosecution story; the appellant has no prior criminal history and he is languishing in jail since 20.12.2022.

13. Considering the aforesaid overall facts and circumstance of the case, without expressing any opinion on merits of the case, this Court of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

14. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 31.01.2023 passed by the learned Special Judge, S.C./ S.T. (P.A.) Act/ Additional Sessions Judge, Court No.2, District- Unnao, in Bail Application No.44 of 2023, arising out of Case Crime No.638 of 2022, under Sections 452, 376, 504, 506 I.P.C. and Section 3(4) V SC/ST Act, Police Station- Gangaghat, District- Unnao is set aside.

15. Let the appellant, Shubham Pal be released on bail in the aforesaid case crime number with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain present, 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 Cr.P.C. If in the opinion of the trial court absence of the appellant 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 against him in accordance with law.

The learned trial Court is directed to proceed with the trial of the aforesaid case and conclude the same with utmost expedition by observing the provisions contained in Section 309 Cr.P.C., in accordance with law, without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 19.4.2023

Manoj K.