Suraj vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 25101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:59647
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1860 of 2022
 

 
Appellant :- Suraj
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lucknow And Another
 
Counsel for Appellant :- Ajeet Kumar,Aakash Srivastava,Rinku Verma
 
Counsel for Respondent :- G.A.,Ram Milan Yadav
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Ajeet Kumar, learned counsel for the appellant, Sri Ram Milan Yadav, learned counsel for the opposite party no.2 as well as 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 06.07.2022 passed by learned Special Judge, S.C./S.T. Act, Barabanki in Bail Application No.1608 of 2022, Case Crime No.226 of 2022, under Sections 376, 506 I.P.C. and Section 3(1)Da, 3(1)Dha, 3(2)5 of S.C./S.T. Act, Police Station Kothi, District Barabanki, 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 rivalry. He further submits that the appellant has been implicated in this case with intention to defame his image as well as his family's image in the society. As per the case set up by the prosecution, the accused/appellant entered in the house of the victim, when she was alone as her husband went to the fields, and committed rape upon her.

Learned counsel for the appellant further submits that there are various contradictions in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. The prosecutrix in her statement recorded under Section 161 Cr.P.C. stated that the appellant pushed her on the cot and committed rape upon her whereas in her statement recorded under Section 164 Cr.P.C., the prosecutrix stated that while she was lying on the cot, the appellant threatened her for life and committed rape upon her.

Learned counsel for the appellant further submits that allegation of rape got demolished after perusal of medical report of the prosecutrix, wherein doctor has clearly stated that no definite opinion regarding sexual assault can be given, hymen was found torn and healed up and smear slide was negative for spermatozoa. He further submits that the age of the prosecutrix is 30 years, as such, she is major and know the consequences very well.

Learned counsel for the appellant further submits that infact the husband of the prosecutrix borrowed a sum of Rs.20,000/- from the appellant and when the appellant asked to return his money, the instant first information was lodged with concocted story. This fact also finds place in para 12 of the affidavit filed in support of the bail application. 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 02.06.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned counsel for the opposite party no.2 as well as learned A.G.A. for the State opposed the prayer for bail, however, they are 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 there are various contradictions in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C as in her statement recorded under Section 161 Cr.P.C., she stated that the appellant pushed her on the cot and committed rape upon her whereas in her statement recorded under Section 164 Cr.P.C., she stated that while she was lying on the cot, the appellant threatened her for life and committed rape upon her; allegation of rape got demolished after perusal of medical report of the prosecutrix, wherein doctor has clearly stated that no definite opinion regarding sexual assault can be given, hymen was found torn and healed up, smear slide was negative for spermatozoa; the age of the prosecutrix is 30 years, as such, she is major and know the consequences very well 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 06.07.2022 passed by learned Special Judge, S.C./S.T. Act, Barabanki in Bail Application No.1608 of 2022, Case Crime No.226 of 2022, under Sections 376, 506 I.P.C. and Section 3(1)Da, 3(1)Dha, 3(2)5 of S.C./S.T. Act, Police Station Kothi, District Barabanki is hereby set aside and reversed.

Let the appellant, Suraj be released on bail in the Case Crime No.226 of 2022, under Sections 376, 506 I.P.C. and Section 3(1)Da, 3(1)Dha, 3(2)5 of S.C./S.T. Act, Police Station Kothi, 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.

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 :- 18.9.2023

Saurabh