Uday Kumar Verma vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 18284 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:47504
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 1077 of 2022
 
Appellant :- Uday Kumar Verma
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Appellant :- Shiv Shankar Singh,Arvind Kumar,Ashok Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Ashok Kumar Singh, learned counsel for the appellant, Sri Ashok Srivastava, learned A.G.A. for the State and perused the entire record.

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 25.04.2022 passed by learned Special Judge, S.C./S.T. Act, Barabanki in Bail Application No.897 of 2022, Case Crime No.53 of 2022, under Sections 376, 323, 452, 506 I.P.C. and Section 3(2)V of S.C./S.T. Act, Police Station Baddupur, District Barabanki, whereby the bail application of the appellant has been rejected.

On 04.07.2023, the following order was passed:-

"Learned counsel for the appellant and Sri Satendra Kumar Srivastava, learned A.G.A. for the State are present.

As per office report dated 30.05.2022, notice upon opposite party no.2 has already been served, however, till today no counter affidavit has been filed on behalf of the opposite party no.2 nor any counsel has put in appearance on her behalf. It appears that opposite party no.2 is not interested to contest this case.

As a last opportunity, ten days and no more time is granted to opposite party no.2 for filing counter affidavit.

In case counter affidavit is not filed within the aforesaid prescribed time of ten days, the case will be heard and decided finally on the next date.

Put up this case on 20.07.2023."

Today, when the case is taken up, no one appeared on behalf of the opposite party no.2 nor any counter affidavit is filed on her behalf, thus, it appears that she is not interested to pursue the case.

Learned A.G.A. for the State has already filed counter affidavit and in reply thereto, rejoinder affidavit has also been filed by learned counsel for the appellant, which are available on record.

As the matter pertains to bail, therefore, this Court has no option but to proceed in the matter.

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 rivalry. It is specifically stated in para 8 of the affidavit filed in support of the bail application that due to enmity of pradhani election, the appellant was falsely implicated by the rival party and no specific denial of this para has been made by the opposite party no.2 as no counter affidavit has been filed even though learned A.G.A. for the State has also not made any denial of this fact. Thus, this averment appears to be true.

Learned counsel for the appellant further submits that as per the first information report lodged by the prosecutrix herself, the appellant entered into her room and committed rape. In her statement recorded under Section 161 Cr.P.C., she has repeated the version of F.I.R. whereas she has slightly modified her statement recorded under Section 164 Cr.P.C. by stating that while she was sleeping with her five children in her room, the appellant entered and committed rape with her. In this context, learned counsel for the appellant submits that it is not possible that while the rape was being committed, any of the five children did not wake up to save the prosecutrix. Thus, the prosecution story appears to be improbable.

Learned counsel for the appellant further submits that the allegation of rape got demolished after perusal of medical report wherein doctor has opined that as per her internal and external examination as well as pathological report, no definite opinion regarding recent penetrative sexual assault could be given. He further submits that urine pregnancy test of the prosecutrix was also found to be negative and she was found to be of 31 years in age, as such, allegation of rape levelled against the appellant are false and, therefore, the appellant is entitled for bail.

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 not having any criminal history and he is in jail since 06.03.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. opposed the prayer for bail, however, he is unable to dispute the 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 in the statement of the victim recorded under Sections 164 Cr.P.C., she has stated that she was sleeping with her five children and while commission of rape, any of the child did not wake up to save the mother and also considering the medical report, wherein doctor has opined that as per her internal and external examination as well as pathological report, no definite opinion regarding recent penetrative sexual assault could be given 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, reported in (2018) 3 SCC 22, 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 25.04.2022 passed by learned Special Judge, S.C./S.T. Act, Barabanki in Bail Application No.897 of 2022, Case Crime No.53 of 2022, under Sections 376, 323, 452, 506 I.P.C. and Section 3(2)V of S.C./S.T. Act, Police Station Baddupur, District Barabanki is hereby set aside and reversed.

Let the appellant, Uday Kumar Verma be released on bail in the Case Crime No.53 of 2022, under Sections 376, 323, 452, 506 I.P.C. and Section 3(2)V of S.C./S.T. Act, Police Station Baddupur, District Barabanki 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 :- 20.7.2023

Saurabh