Court No. - 24
Case :- CRIMINAL APPEAL No. - 5328 of 2017 Appellant :- Dharmendra Kumar Respondent :- State Of U.P. & Another Counsel for Appellant :- Rakesh Pati Tiwari Counsel for Respondent :- G.A.
Hon'ble Om Prakash-VII,J.
This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 25.8.2017 passed by the Additional Sessions Judge / Special Judge (POCSO Act), Court No.7, Bareilly.
Since documents annexed with the memo of appeal (certified copies of lower Court bail record) and the documents (instruction and case diary) available with the learned AGA are sufficient to decide the appeal, the Court is proceeding to decide the same.
Heard learned counsel for the appellant, learned counsel for the opposite party no.2 as well as the learned AGA and perused the entire record.
It is submitted by the learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. He has not committed the present offence. Alleged offences are not attracted against him. Prosecution case is not supported by medical evidence and the same is based on oral evidence. The Court below while passing the impugned order did not take into account the facts and evidence available on record in right perspective and erred in passing the same. Learned counsel for the appellant also referred to the amended provisions of SC/ST Act. Appellant is in jail since 8.8.2017. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegality warranting interference by this Court.
On the other hand, learned counsel for the opposite party no.2 and the learned AGA opposing the prayer for bail submitted that the appellant committed the present offence having knowledge that the victim belonged to scheduled caste community. From the evidence available on record, a prima-facie case is made out against the appellant. There is no infirmity or illegality in the impugned order. Learned counsel for the opposite party no.2 also referred to the statement of the victim recorded under Sections 161 and 164 CrPC.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.
Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the Court is of the opinion that the appellant has made out a case for bail. The Court below erred in rejecting 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 rejecting the bail application of the appellant is set-aside.
Let the appellant Dharmendra Kumar involved in Case Crime No. 289 of 2017, under Sections 377 IPC IPC, 4 POCSO Act and 3(2)(5) SC/ST Act, P.S. Kila District Bareilly be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The appellant will not tamper with the evidence during the trial.
2. The appellant will not pressurize/ intimidate the prosecution witness.
3. The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 28.5.2018 safi