Pankaj Dixit vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 18652 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:48280
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 2404 of 2022
 
Appellant :- Pankaj Dixit
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
 
Counsel for Appellant :- Upendra Prakash Pathak,Ambrish Kumar,Anupam Bajpai,Deepak Kumar Pandey,Shiv Pal Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

In compliance of the order of this Court dated 11.07.2023, learned counsel for the appellant has filed a supplementary affidavit annexing therewith the current status of the trial, the same is taken on record.

Heard Sri Surya Prakash holding brief of Sri Shiv Pal Singh, learned counsel for the appellant and Sri Ajay Kumar Agnihotri, learned Additional Government Advocate for the State as well as 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 20.09.2022 passed by Special Judge (SC/ST Act), District Barabanki by which the bail application of the appellant in Case Crime No. 234 of 2022, under Sections 376, 504, 506 IPC and Sections 3(2)(v) of SC/ST Act, Police Station Badosarai, District Barabanki, has been rejected.

As per the office report dated 31.01.2023, notice has already been served upon opposite party no. 2 by his father-in-law but till date neither counter affidavit has been filed nor any counsel represents opposite party no. 2, thus, it appears that opposite party no. 2 is not interested to contest this matter any further. Learned AGA for the State has already filed counter affidavit in the matter and rejoinder thereto has also been filed by learned counsel for the appellant.

Learned counsel for the appellant submits that the matter pertains to the bail application and is urgent one, thus this Court has no option but to proceed for final argument.

Learned counsel for the appellant submits that the appellant is innocent and has falsely been implicated in the present case due to enmity and regarding some financial dispute. It is further stated by learned counsel for the appellant that the complainant was tractor driver of the appellant's brother and has taken a loan of Rs. 40,000/- and when the demand of said loan was made, he refused to give the same and bringing his wife in front, lodged the present FIR against the appellant only to build the pressure. This fact has been stated in Para 13 to the affidavit filed in support of the bail application.

Learned counsel for the appellant further submits that from perusal of the averments made in the First Information Report and the statements recorded under Section 161 and 164 Cr.P.C., wherein the prosecutrix has stated that when she went to ease herself in the field, then the appellant committed rape with her, whereas there is no any independent eye witness of the alleged incident, even though the complainant, who is husband of the prosecutrix, is not the eye witness. It was only with the intention not to pay Rs. 40,000/- to the brother of the appellant, the appellant has falsely been implicated in the present case.

Learned counsel for the appellant further submits that the entire allegation of rape got demolished after perusal of the medical report, wherein the doctor in his report has clearly opined that there is no any external or internal injury is found on the private part of the prosecutrix. Further, the vaginal smear and cervical smear was taken slides were prepared and sent to pathology department, District Hospital, Barabanki and further it was stated that according to pathology report, no spermatozoa or gonococci was found in the smear and further doctor opined that no definite opinion can be given about recent intercourse, thus, learned counsel submits that as per medical report, the entire allegation of committing rape by the appellant got demolished and he has falsely been implicated in the present case. The medical report is already on record. The age of the prosecutrix is about 29 years, as such, allegation of rape levelled against the appellant is 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 31.08.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

On the other hand, learned AGA opposed the prayer for bail, however he could not dispute the aforesaid facts as argued 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 there is no any independent eye witness of the alleged incident; only with the intention not to pay Rs. 40,000/- to the brother of the appellant, the appellant has falsely been implicated in the present case; as per medical report, no internal or external injury was found on the person of the prosecutrix; no spermatozoa or gonococci was found in the smear and as per doctor report that no definite opinion can be given about recent intercourse; age of the prosecutrix was found to be 29 years 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 20.09.2022 passed by Special Judge (SC/ST Act), District Barabanki by which the bail application of the appellant in Case Crime No. 234 of 2022, under Sections 376, 504, 506 IPC and Sections 3(2)(v) of SC/ST Act, Police Station Badosarai, District Barabanki, is hereby set aside and reversed.

Let the appellant, Pankaj Dixit be released on bail in Case Crime No. 234 of 2022, under Sections 376, 504, 506 IPC and Sections 3(2)(v) of SC/ST Act, Police Station Badosarai, 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.

[Shamim Ahmed,J.]

Order Date :- 24.7.2023/kkv/