Allahabad High Court
Firoj vs State Of U.P. And Another on 3 April, 2023
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 50
Case :- CRIMINAL APPEAL No. - 7294 of 2022
Appellant :- Firoj
Respondent :- State of U.P. and Another
Counsel for Appellant :- Pankaj Kumar Tyagi
Counsel for Respondent :- G.A.,Shashank Tripathi
Hon'ble Ram Manohar Narayan Mishra,J.
Instant criminal appeal has been preferred under Section 14(A)(2) of SC/ST Act, against judgment and order dated 16.09.2022 passed by Special Judge (SC/ST P.A. Act) in Case Crime No. 395 of 2022, under Sections 366, 376-D, 506 I.P.C. and Section 3(2)(5) of SC/ST (P.A. Act), P.S.- Jahangeerabad, District- Bulandshar, whereby the bail application of the appellant has been rejected.
Heard learned counsel for the appellant, learned counsel for first informant, learned A.G.A. for the State and perused the material on record.
The prosecution case in brief is that the informant, who is father of victim has lodged the FIR at P.S. concerned on basis of written report on 12.08.2022 at 18:27 P.M., wherein he stated that in the intervening night of 31.07.2022 and 01.08.2022 at around 00:30 A.M., when he got awake, he found his daughter aged around 19 years missing. He began search of his daughter and at around 6:00 A.M., he found his missing daughter in depressed condition near cow dung heap of Zaferuddin. She stated to him that accused persons Bablu and Firoz entered in their house, dragged her outside her home and on pointing a country made pistol, Bablu committed rape on her and Firoz was guarding the commission of the incident. They also threatened her with life and abused her with caste specific words.
Learned counsel for the appellant submitted that the vaginal smear and other D.N.A sampling is sent for testing. He further submitted that in medical legal examination of the prosecutrix dated 02.08.2022, no external or internal injuries were detected on her person. The doctor has observed that there is no sign of use of source, however; final opinion is reserved subject to availability of F.S.L. report. He next submitted that the appellant has not been assigned specific role in F.I.R. as well as in version of the prosecutrix, specific allegation of commission of rape has been assigned to co-accused Bablu. The appellant is said to have accompanied him at the time of offence as per F.I.R. version as well as according to statement of victim recorded under Sections 161 and 164 Cr.P.C. She has gained majority at the time of incident. He lastly submitted that the accused appellant is held in jail custody since 05.08.2022 and he is given distinguishable role with co-accused Bablu against whom specific allegation of rape has been levelled by the informant as well as by the prosecutrix. The learned court below has rejected the bail application of the appellant on insufficient grounds. The case of the appellant for the purpose of bail was not duly considered by learned court below.
Per contra, learned counsel for first informant as well as learned A.G.A. for the State opposed the bail application and submitted that accused was sharing common intention with the main accused Bablu at the time of incident and he facilitated the offence. Therefore, he does not deserve to be release on bail, however, they did not dispute the specific allegations of rape which has been made to co-accused Bablu.
Considering rival submissions of the parties, nature of the offence and allegations, complicity of accused, attending facts and circumstances of the case, the supporting evidence and the fact that allegation of commission of rape made by prosecutrix is against co-accused Bablu, but without expressing any opinion on the merits of the case, this Court is of the opinion that the appellant has made out a case for bail.
Accordingly, the appeal is hereby allowed. The impugned order dated 16.09.2022 rejecting the bail application of the appellant is hereby set aside.
Let the appellant- Firoj be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) That the appellant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That 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) That after his release, the appellant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the appellant on bail.
It is made clear that in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the appellant.
It is also 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.
Order Date :- 3.4.2023
Nitika
