Court No. - 52
Case :- CRIMINAL APPEAL No. - 4034 of 2017 Appellant :- Bittu @ Devendra Kushwaha Respondent :- State Of U.P.
Counsel for Appellant :- Narendra Kumar,N.K. Tiwari,Surendra Kumar Counsel for Respondent :- G.A.,Ruchita Jain
Hon'ble Rajul Bhargava,J.
Heard Sri N.K. Tiwari, learned counsel for the appellant, Ms Ruchita Jain, learned counsel for opposite party no.2 and learned AGA for the State and perused the record.
This appeal has been filed against judgement and order dated 17.7.2017 of learned Special Judge (SC/ST Act), Jhansi passed in Bail Application No. 1334 of 2017 arising out of Case Crime No. 176 of 2017, under Sections 376, 452, 354-D, 506 I.P.C. and Section 3(2)5 of SC/ST Act, P.S.
Nawabad, District Jhansi, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law. It is further submitted that the prosecutrix is aged about 28 years. The applicant has been falsely implicated by the brother of the prosecutrix on account of the fact that the applicant had advanced Rs.50,000/- to the brother of the prosecutrix and when he demanded his money back, an altercation had taken place between them. It is next contended that from the tenor of the statement of the prosecutrix recorded under Section 164 Cr.P.C., entire prosecution version as set up by the prosecution appears to be highly improbable and unbelievable. It has been argued that as per the prosecutrix at that time when the applicant entered the house of prosecutrix, her mother and brother were also inside the house.There is nothing on record to indicate that the victim was manhandled and criminally assaulted by the applicant. The medical examination was conducted on the prosecutrix after 41 days of alleged incident. Therefore, the appellant, who is in jail since 8.5.2017, deserves to be released on bail.
Learned AGA as well as learned counsel for the informant while opposing the aforesaid submissions of learned counsel for the appellant submitted that grave offence in a daring manner has been committed by the appellant, as such the applicant is not entitled to be released on bail.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 17.7.2017 of learned Special Judge (SC/ST Act), Jhansi is set aside.
Let appellant-applicant-Bittu @ Devendra Kushwaha, be released on bail in aforesaid case on his 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 :- 30.4.2018 MN/-