Wazir vs State Of U.P. Thru. Its Prin. Secy. ...
2023 Latest Caselaw 21072 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:52483
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1947 of 2022
 

 
Appellant :- Wazir
 
Respondent :- State Of U.P. Thru. Its Prin. Secy. Deptt. Of Home, Lko. And Another
 
Counsel for Appellant :- Ajai Vikram Singh,Arpan Prakash Srivastava,Irfan Khan,Laxmi Narayan Gupta,Mohak Srivastava,Syed Mohd. Munis Jafari
 
Counsel for Respondent :- G.A.,Richa Srivastava,Shikha Srivastava,Suneel Kumar Singh Kalhans
 

 
Hon'ble Shamim Ahmed,J.

1. Heard Syed Mohd. Munis Jafari, learned counsel for the appellant, Shri Suneel Kumar Singh Kalhans, learned counsel for the opposite party no.2 and Shri Bhaskar, learned AGA for the State.

2. 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 22.07.2022 passed by the learned Special Judge, S.C./S.T. (P.A) Act, Hardoi, in Bail Application No. 1527 of 2022, arising out of Case Crime No.185 of 2022, under Sections 376, 504 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station - Hariyawan, District - Hardoi, whereby the bail application of the appellant has been rejected.

3. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to enmity and village party bandi. The wife of the appellant is the sitting Pradhan and the complainant is the labour on the pond of the ex-pradhan Dori Lal. The appellant has given application dated 07.03.2022 against the son of the ex-pradhan Dori Lal, namely, Ram Gopal as well as one Arvind S/o Chobar and some other persons regarding misappropriation of fund of Gram Samaj and that application is given to the District Magistrate, Hardoi, a copy of the said application is filed as Annexure No.2 to the affidavit filed in support of the said bail application. Thereafter the wife of the present appellant has also moved an application dated 18.05.2022, who is the sitting Pradhan before the Chief Minister and other authority against the ex-Pradhan Dori Lal, Narendra, Arvind and other persons making allegations and has also stated therein that those persons are threatening the wife of the appellant that they will falsely implicated in the SC/ST case. Learned counsel further submitted that thereafter the present FIR has been lodged on 27.05.2022 with malfide intention and to take revenge of the application given by the appellant dated 07.03.2022 to the District Magistrate, Hardoi as well as the application dated 18.05.2022 given by the wife of the appellant to the Authorities concerned against the ex-Pradhan. The ex-Pradhan Dori Lal to take revenge against the appellant's wife and the appellant bring forward his own man the complainant, namely, Jadroop Pasi who forward his wife and made an allegation of rape against the present appellant. It was further argued by learned counsel for the appellant that there is a material contradiction in the version of the First Information Report and the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. In the statement recorded under Section 164 Cr.P.C. and 161 Cr.P.C., the prosecutrix stated that the appellant has slapped her before committing rape but in the FIR there is no whisper of the slapping. Further, in the statement recorded under Section 161 Cr.P.C., the complainant stated that the appellant has torned the cloth. Even though in the First Information Report, nothing has been stated. Thus he submits that the entire statement of the prosecutrix given under Section 161 and 164 Cr.P.C. and the version of the FIR is on the pressure created by the ex-Pradhan Dori Lal as the husband of the prosecutrix is the near and dear man of the ex-Pradhan. Thus the malafide and arbitrary action is on the face of the record and with the intention to falsely implicate the applicant in the present case. Learned counsel further submits that there was an intention to take some financial benefit by the state exchequer in lodging the present FIR under the provision of SC/ST Act. It was further argued that the entire allegation of rape was demolished after perusal of the medical report whereas the doctor on the basis of external and internal injury has stated that no definite opinion can be given for sexual assault. Further, there was no bleeding, no discharging was present at the time of examination nor there was any external or internal injury on the person of the prosecutrix. Thus he submits that the medical report does not support the allegation and the appellant should be released on bail as the entire story is false and fabricated and the FIR is lodged with the intention to defame the image of the appellant and his entire family in the society.

4. Several other submissions brought forth before this Court regarding the illegality and infirmity of the prosecution case and it has also been pointed out before this Court that due to heavy pendency of the criminal case before the trial court, there is blinking chance that in near future the trial of the present case be concluded expeditiously. It has also been highlighted before this Court that the appellant is in detention since 19.06.2022 and he has already undergone a substantial period of detention.

5. Per contra, learned counsel for the opposite party no.2 Shri Suneel Kumar Singh Kalhans has opposed the prayer for bail and has submitted that the allegation of rape is proved as per the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. and submits that the bail application of the appellant should be rejected.

6. Shri Bhaskar, learned AGA is also in agreement with the argument as advanced by learned counsel for the opposite party no.2.

7. 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 there is a material contradiction in the version of the First Information Report and the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C and also there is material contradiction in the statement of the complainant and in the version of the FIR. The medical report does not support the allegation of rape and there also appears malafide intention for lodging the case.

8. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 22.07.2022 passed by the Special Judge, S.C./S.T. (P.A) Act, Hardoi in Bail Application No.1527 of 2022, arising out of Case Crime No.185 of 2022, under Sections 376, 504 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station - Hariyawan, District - Hardoi is hereby set aside and reversed.

9. Let the appellant, Wazir be released on bail in Case Crime No. 185 of 2022, under Sections 376, 504 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station - Hariyawan, District - Hardoi 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 :- 8.8.2023

KR