Court No. - 74
Case :- CRIMINAL APPEAL No. - 1242 of 2020 Appellant :- Bhagwan Singh Respondent :- State of U.P. and Others Counsel for Appellant :- Harish Chandra Mishra,Hari Nath Chaubey Counsel for Respondent :- G.A.,Ashok Kumar Yadav
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned counsel for the informant, learned AGA for the State and perused the record.
This appeal has been filed by appellant Bhagwan Singh against the order dated 05.02.2020 of learned Special Judge, SC/ST Act, Jhansi, passed in Second Bail Application No. 110 of 2020 (Bhagwan Singh vs. State of U.P.), arising out of Case Crime No. 137 of 2018, under sections 366, 323, 504, 506, 376 I.P.C., and section 3(2)5 of SC/ST Act, P.S.-Erach, District- Jhansi, by which bail plea of appellant has been rejected.
Submission of learned counsel is that the appellant has challenged the impugned order on the ground that the learned Special Judge has wrongly rejected the bail application without considering the facts and circumstances of the case and the appellant has been falsely implicated in this case, there is no independent witness of the incident and out of enmity applicant has been implicated. Further submission is that victim has not supported the case in her statement under section 161 Cr.P.C. and she has denied the allegation of rape. Further submission is that the incident has taken place on 15.04.2018 and in September 2019 she has been recovered. Further submission is that the F.I.R. was lodged giving an application before the Magistrate under section 156(3) Cr.P.C. after a lapse of almost six months from the date of occurrence and there is no explanation for this delay. It has been also submitted that the statement of victim under section 164 Cr.P.C. is afterthought and it cannot be believed that she lived with the accused persons for about one and half years and she did not raised any alarm earlier, the learned Special Judge has committed gross error in rejecting the bail application and the impugned order is liable to be set aside. Further submission is that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA has vehemently opposed the prayed and submitted that in the statement under section 164 Cr.P.C. the victim has supported the prosecution version and has stated that rape was committed on her, as such there is no illegality in the impugned order and the appeal is liable to be dismissed.
Having heard the submission of learned counsel of both sides, it appears that the whole incident continued for almost one and half year and during that period the alleged offence has been said to have been committed frequently many times. It is strange that on none of the occasion the victim complaint to any one about the happenings with her not at any occasion she raised any alarm. Moreover, when she was examined for the first time under section 161 Cr.P.C. by I.O. she did not put the allegation of rape against any of the accused. These facts are significant and should have been considered by learned Special Judge logically. The leaned Special Judge appears to have been influenced by the fact that under section 164 Cr.P.C. the victim has stated against the applicant and she belongs to SC/ST community. The appellant is in jail from the last about twenty months. In view of the above, I find apparent illegality in the impugned order, therefore, the order is liable to be set aside.
In the result, appeal is allowed. Order dated 05.02.2020 passed by learned Special Judge, SC/ST Act, Jhansi is set aside.
Let appellant-applicant Bhagwan Singh be released on bail in Second Bail Application No. 110 of 2020 (Bhagwan Singh vs. State of U.P.), arising out of Case Crime No. 137 of 2018, under sections 366, 323, 504, 506, 376 I.P.C., and section 3(2)5 of SC/ST Act, P.S.-Erach, District- Jhansi on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-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 he 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 applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-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 applicant to prison.
Order Date :- 30.7.2021 Bhanu