Sri Krishna Maurya vs State Of U.P. And Anr.
2023 Latest Caselaw 20033 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:50502
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 959 of 2021
 

 
Appellant :- Sri Krishna Maurya
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Sushil Pandey,Kamlesh Kumar Shukla,Ram Naresh Singh Chauhan
 
Counsel for Respondent :- G.A.,Ambrish Kumar Dwivedi,Ravi Dwivedi
 

 
Hon'ble Shamim Ahmed,J.

List has been revised.

Heard Sri Kamlesh Kumar Shukla, learned counsel for the appellant, Sri Bhasker Mal, learned A.G.A. for the State and perused the entire record.

Sri Ambrish Kumar Dwivedi, learned counsel for the opposite party no.2 has accepted notice from learned counsel for the appellant about mentioning of the case. The receipt of notice is available on record. However, he is not present even in revised call of list nor any counter affidavit is filed on his behalf.

Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed further in the matter.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 22.03.2021 passed by learned Special Judge (S.C./S.T. Act), Sitapur in Bail Application No.59 of 2021, Complaint Case No.174 of 2018, under Sections 376-D, 506 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Mishrikh (Now Naimisharanya), District Sitapur, whereby the bail application of the appellant has been rejected.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village party bandi. No such incident as alleged by the prosecution took place. The prosecutrix as well as the appellant are resident of same village and the appellant is supporter of another pradhan. The prosecutrix has falsely implicated the appellant alongwith co-accused Mushtaq.

Learned counsel for the appellant further submits that the prosecutrix has moved an application under Section 156(3) Cr.P.C. before the learned court below on 13.09.2018 in respect of the incident which took place on 07.09.2018, as such, there is an inordinate delay of 6 days without any proper explanation. The allegation of rape has been levelled against the appellant as well as co-accused Mushtaq, however, there is no eye witness of the alleged incident. The learned Magistrate without considering the material on record, vide order dated 02.03.2020, summoned the appellant under Sections 376-D, 506 I.P.C. and Section 3(2)(V) S.C./S.T. Act.

Learned counsel for the appellant further submits that statement of the prosecutrix was recorded under Section 200 Cr.P.C. wherein she has repeated almost the same version of the complaint. The statements of witnesses were also recorded under Section 202 Cr.P.C. which includes P.W.-1 (Husband of the prosecutrix), P.W.-2 (Mother-in-law of the prosecutrix) and P.W.-3 (Neighbour of the prosecutrix) and they all have stated the same version which was stated by the prosecutrix.

Learned counsel for the appellant further submits that the prosecutrix refused to undergo medical examination, thus, in absence of any medical examination, it cannot be said that the appellant committed rape upon her. Learned counsel for the appellant further submits that the instant case is lodged only with intention to get financial aid from the State Exchequer.

Learned counsel further submits that the appellant is in detention since 10.03.2021 and has already undergone a substantial period of detention. In support of his contention, learned counsel for the appellant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the appellant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

Learned counsel for the appellant further submits that ratio of law applicable in aforesaid cases is also applicable in the case of the present appellant, therefore, the appellant be enlarged on bail by this Court sympathetically.

Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is in jail since 10.03.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. There is no criminal history of the appellant.

Learned A.G.A. opposed the prayer for bail by submitting that as per application moved under Section 156(3) Cr.P.C., the allegation of rape is made out against the appellant, however, he is unable to dispute the other contentions raised by learned counsel for the appellant.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the prosecutrix has moved an application under Section 156(3) Cr.P.C. before the learned court below on 13.09.2018 in respect of the incident which took place on 07.09.2018 without any proper explanation of delay of seven days, there is no eye witness of the alleged incident, all the witnesses have stated the same version which was stated by the prosecutrix, the prosecutrix refused to undergo medical examination, thus, in absence of any medical examination, it cannot be said that the appellant committed rape upon her and also considering the argument of learned counsel for the appellant that the instant case is lodged only with intention to get financial aid from the State Exchequer and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another; (2018) 3 SCC 22, Kamal Vs. State of Haryana (Supra) and Takht Singh Vs. State of Madhya Pradesh (Supra), this Court is 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.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 22.03.2021 passed by learned Special Judge (S.C./S.T. Act), Sitapur in Bail Application No.59 of 2021, Complaint Case No.174 of 2018, under Sections 376-D, 506 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Mishrikh (Now Naimisharanya), District Sitapur is hereby set aside and reversed.

Let the appellant, Sri Krishna Maurya be released on bail in the Complaint Case No.174 of 2018, under Sections 376-D, 506 I.P.C. and Section 3(2)(V) S.C./S.T. Act, Police Station Mishrikh (Now Naimisharanya), District Sitapur 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.

(viii) The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

Order Date :- 1.8.2023

Saurabh