Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
Notice has already been served upon respondent no. 2 but none is present on behalf of respondent no. 2.
This criminal appeal has been filed by the appellant Amit @ Raki Yadav with a prayer to set aside the judgment and order dated 10.02.2021, passed by Special Judge SC/ST (P.A.) Act, Court No. 2, Etawah, in Criminal Misc. Bail Application No. 223 of 2021, arising out of Case Crime No. 352 of 2020, under Section 363 I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Friends Colony, District Etawah.
Aggrieved by the bail rejection order, the present criminal appeal has been filed that the impugned order has been challenged on the ground that the first information report has been lodged with delay of eight days from the date of incident. there is no convincing explanation for the said delay. The first information report has been lodged by respondent no. 2 in which the accused appellant has been named along with two other unknown persons and the allegation has been that the accused-appellant enticed away and kidnapped the daughter of respondent no. 2 who was aged about 16 years. Several applications were given to various authorities, hence, the present first information report has been lodged.
Learned counsel for the appellant has submitted that the accused-appellant has been falsely implicated in the present case. Submission is that after 20 days from the date of incident, the victim was recovered but she was not recovered from the possession of the appellant. In the statement of the victim recorded under Section 161 Cr.P.C., she has stated that on the date of incident her father in the drunken stage quarreled with her mother and committed maar-peet with her and being aggrieved by the same, she had gone to her Mausi. When she was recovered, her statement under Section 164 Cr.P.C. was recorded, in which she has stated that when she was going with her friends to Bharthana Chauraha, on the way, the accused met and forcibly took her on his motorcycle. Thereafter, she became unconscious and when she become conscious, she found herself in Shikohabad. She told everything to her mother and she took her to her house. Submission is that nothing serious has come in the statement of the victim against the appellant. There s no allegation of any sexual abuse by him and there is contradiction between her statements recorded under Sections 161 and 164 Cr.P.C. No medical examination has been conducted nor any inclination has been made from the side of informant for such medical examination. The learned Special Judge did not consider all these material aspects. The submission of the learned counsel for the appellant is that the accused-appellant has no criminal history and the court below has illegally rejected the bail application of the appellant. Hence, the impugned order is liable to be set aside and the accused-appellant is entitled to be enlarged on bail.
Learned A.G.A. has vehemently opposed the the prayer and has submitted that the victim is a minor child aged about 17 years, as such, the offence has become more serious. Further submission is that the learned Special Judge has considered all the aspects of the matter and has rightly rejected the bail application of the appellant. Therefore, the appeal has got no force and is liable to be dismissed.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also the fact that there is no allegation of any sexual abuse and there is apparent contradiction in the statements of the victim given to the I.O. and subsequently to the Magistrate. There is no allegation of any sexual assault also there is no reasonable explanation of delay in lodging the first information report. Therefore, I find that the learned court below has erred in rejected the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order dated 10.02.2021, passed by Special Judge SC/ST (P.A.) Act, Court No. 2, Etawah is hereby set aside.
Let the appellant namely Amit @ Raki Yadav involved in aforesaid case be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellant is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the appellant to prison.
Order Date :- 17.8.2021 sailesh