Anil Kumar @ Tulla Lodh vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 25285 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:60102
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 3073 of 2022
 

 
Appellant :- Anil Kumar @ Tulla Lodh
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Another
 
Counsel for Appellant :- Laxmi Sewak,Shishir Pradhan
 
Counsel for Respondent :- G.A.,Bharat Kumar Dixit,Kuldeep Pandey
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Shishir Pradhan, learned counsel for the appellant, Sri Veer Bhan Singh, learned A.G.A.-I 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 06.09.2022 passed by learned Special Judge, S.C./S.T. Act, Raebareli in Bail Application No.2191 of 2022, Case Crime No.214 of 2022, under Sections 376, 504, 506 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station Gurbuxganj, District Raebareli, whereby the bail application of the appellant has been rejected.

On 08.08.2023, this Court has passed the following order:-

"Sri Bhasker Mal, learned A.G.A. for the State has filed counter affidavit today in the Court, the same is taken on record.

Learned counsel for the appellant prays for and is granted ten days' time to file rejoinder affidavit.

As per office report dated 13.01.2023, notice has already been served upon opposite party no.2 but neither any counter affidavit has been filed till date nor any counsel is present to represent the opposite party no.2.

As a last opportunity, ten days and no more time is granted to opposite party no.2 for filing counter affidavit. Three days thereafter is allowed to learned counsel for the appellant for filing rejoinder affidavit.

Put up this case on 30.08.2023."

Despite the aforesaid order, no counter affidavit has been filed nor any counsel has appeared on behalf of the opposite party no.2, as such, it appears that she is not interested to contest this 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. Since learned counsel for the appellant presses urgency in the matter, as such, this Court has no other option but to proceed further with the matter.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. No such incident as alleged by the prosecution took place. As per the case set up by the prosecution, when the prosecutrix went to defecate in the fields, the accused came and caught her and thereafter took her inside the bushes and committed rape upon her.

Learned counsel for the appellant further submits that infact there was a dispute between the husband of the prosecutrix and appellant in relation to a drain, which was infront of the house of the appellant. He further submits that the prosecution story appears to be manufactured as the instant first information report has been lodged on 30.04.2022 by moving an application under Section 156(3) Cr.P.C. of the incident dated 24.10.2021 i.e. with a delay of almost six months.

Learned counsel for the appellant further submits that the prosecutrix has reiterated the version of F.I.R. in her statements recorded under Sections 161 and 164 Cr.P.C., however, the prosecutrix has also stated in her statement recorded under Section 164 Cr.P.C. that there was a dispute between the parties in respect of drain. He further submits that the prosecutrix has refused to undergo internal as well as external medical examination and in this context, statement of doctor has also been annexed as annexure no.5 to the affidavit filed in support of the bail application.

Learned counsel for the appellant further submits that the instant F.I.R. is a cross version of the F.I.R., which was lodged by the appellant regarding the date of incident dated 21.10.2021. Thus, learned counsel for the appellant submits that the 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 22.07.2022 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 there was a dispute between the husband of the prosecutrix and appellant in relation to a drain; the instant first information report has been lodged on 30.04.2022 by moving an application under Section 156(3) Cr.P.C. of the incident dated 24.10.2021 i.e. with a delay of almost six months; the prosecutrix has reiterated the version of F.I.R. in her statements recorded under Sections 161 and 164 Cr.P.C.; the prosecutrix has refused to undergo internal as well as external medical examination and in this context, statement of doctor has also been annexed to the affidavit filed in support of the bail application; the instant F.I.R. is a cross version of the F.I.R., which was lodged by the appellant regarding the date of incident dated 21.10.2021 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 06.09.2022 passed by learned Special Judge, S.C./S.T. Act, Raebareli in Bail Application No.2191 of 2022, Case Crime No.214 of 2022, under Sections 376, 504, 506 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station Gurbuxganj, District Raebareli is hereby set aside and reversed.

Let the appellant, Anil Kumar @ Tulla Lodh be released on bail in the Case Crime No.214 of 2022, under Sections 376, 504, 506 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station Gurbuxganj, District Raebareli 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 :- 19.9.2023

Saurabh