Court No. - 53
Case :- CRIMINAL APPEAL No. - 2842 of 2018 Appellant :- Arjun Kushwaha Respondent :- State Of U.P. And Another Counsel for Appellant :- Rahul Misra,Raghuvansh Misra Counsel for Respondent :- G.A.
Hon'ble Ghandikota Sri Devi,J.
Heard learned counsel for the parties and perused the record.
This criminal appeal under Section 14A (2) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') has been filed on behalf of the appellant, challenging the order dated 13.03.2018 passed by Learned Additional Session Judge, Court No.2, Sonbhadra in Bail Application No. 198 of 2018, arising out of Case Crime No. 191 of 2017, under Sections 376, 452 I.P.C. and Section 3(2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Duddhi, District Sonbhadra, seeking bail in the aforesaid sections.
It has been contended by the learned counsel for the appellant that as per the prosecution story, the informant Smt. Dhanpat Devi had gone to work in the field, leaving her daughter alone in the house; that the accused/appellant, who is also resident of same village, entered into the house of the informant and had committed rape on the daughter of informant, who is dumb; that when the informant came back to her house, she was informed by her daughter about the incident, accordingly informant reported the incident to the police and on her oral information, the police lodged the FIR showing the age of victim to be 15 years; that the medico legal examination of the victim has been conducted at district hospital, Sonbhadra on the same day; that as per the pathology report, no spermatozoa were found in the vaginal smear of the victim; that the victim was referred to the Medical Board for her age determination and according to the report of the medical board , the victim was found to be 19 years old; that the statement of the informant under section 161 Cr. P.C. was recorded on 21.01.2017, however, the police found it difficult to record the statement of the victim under section 161 Cr. P.C. because due to her dumbness, she was incapable of giving her statement; that in spite of several efforts, the statement of the victim under section 161 Cr. P.C. could not recorded, however, the statement of the brother of the victim under section 161 Cr. P.C. was recorded on 27.12.2017; that according to the medico legal report, the age of victim was 19 years at the time of alleged incident, hence the charges under section 3/4 of POCSO Act were dropped by the police against the accused/appellant; that the charge sheet has already been filed against the accused/appellant under sections 376, 452 I.P.C. and 3(2)(v) SC/ST Act on 30.12.2017; that accused/appellant has been falsely implicated in this case with malafide intention; that accused/appellant has no criminal history; that accused/appellant is in jail since 22.11.2017.
Per contra, learned A.G.A. opposed the prayer for bail and submitted that accused/appellant has committed rape on the prosecutrix. It is further submitted that there is no infirmity or illegality in the impugned order passed by the trial court, hence, the accused/appellant is not entitled for bail.
Upon hearing the learned counsel for the parties and perusal of record, and on considering the facts and circumstances of the case, without adverting to the merits of the case, I am of the considered view that the bail rejection order dated 13.03.2018 passed by the learned Trial Court is liable to be set aside.
In the result, the appeal succeeds and the same stands allowed. The aforesaid impugned order is hereby set aside.
Let the appellant Arjun Kushwaha be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned with following conditions:-
1. The appellant will continue to attend and co-operate in the trial pending before the court concerned on the date fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge in any illegal activities during the bail period.
It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 26.2.2019 T.S.