Court No. - 88
Case :- CRIMINAL APPEAL No. - 2348 of 2020 Appellant :- Ashok Kushwaha Respondent :- State of U.P. and Another Counsel for Appellant :- Shiv Bahadur Yadav,Ashwini Kumar Ojha Counsel for Respondent :- G.A.,Deepanshu Shrivastava
Hon'ble Ajit Kumar,J.
Heard Sri Ashwini Kumar Ojha, learned Counsel for the appellant-applicant, Sri Padmakar Pandey, learned Advocate holding brief of Deepanshu Shrivastava, learned counsel for the complainant and learned AGA for the State.
This Criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant- Ashok Kushwaha with the prayer to set aside the bail rejection order dated 30.07.2020 passed by learned Special Judge (SC/ST Act), Jhansi in Bail Application No. 1023 of 2020, CNR No. UPJS01-002334-2020 in connection with Case Crime No. 190 of 2020 under Sections 376, 452, 323, 504, 506 I.P.C. and Section 3(2)(V) SC/ST Act, P.S.- Sipri Bazar, District- Jhansi.
Allegations in the first information report are that at the strike of midnight hour, the applicant entered the house of the informant and having found informant not to be at home, committed rape upon his wife by pointing knife towards the child.
It has been submitted by learned Counsel for the appellant- applicant that in the statement of victim recorded under Section 164 Cr.P.C. version of the first information report does not find support. The statement as has come up to be recorded under Section 164 Cr.P.C. clearly indicates that having taken advantage of the husband not being at the home, the alleged crime was committed, however, there is no sign of resistance shown by victim in her statement and also the medical examination report does not corroborate of any stand of physical assault like rape per force committed upon the victim. It is further argued by the learned counsel that in the wake of heavy pendency of cases in the Court, there is no chance of any early conclusion of trial. The applicant is languishing in jail since 23.07.2020.
Per contra it is argued by learned counsel for the complainant as well as learned AGA that giving threat to the life of the child in fact the crime has been committed. However, they could not dispute the statement recorded under Section 164 Cr.P.C. of the victim and medical examination report which does not support the theory of rape.
Though the appeal has been opposed vehemently by the learned A.G.A. as well as learned counsel for the complainant but they could not dispute the aforesaid facts.
I have considered the rival submissions so made and having gone through the entire record including the order by which, bail application of the appellant-applicant has been rejected, impugned herein this appeal and having regard to the facts and circumstances of the case and keeping in view the evidence, complicity of accused, I am of the view that the appellant has made out a case for bail.
Accordingly, this appeal is allowed and the impugned order dated 30.07.2020 rejecting the bail of the appellant is set aside.
Let the above named accused-appellant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of Court concerned subject to the condition that applicant shall cooperate in the trial and will not jump the bail.
The concerned Court/Authority/Official is further directed to verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 5.1.2021 IrfanUddin