Court No. - 52
Case :- CRIMINAL APPEAL No. - 7216 of 2017 Appellant :- Dinesh Kahar Respondent :- State Of U.P. & Another Counsel for Appellant :- Arvind Kumar Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
As indicated in the counter affidavit filed by the learned A.G.A., notice has been served personally on respondent No.02, yet no one has appeared on his behalf to oppose the bail prayer in the instant appeal.
Heard Sri Arvind Kumar, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against judgement and order dated 15.11.2017 passed by learned Additional Sessions Judge, Court No.1, Banda passed in Bail Application No.934 of 2017 (Dinesh Kahar vs. State of U.P.), arising out of Case Crime No. 146 of 2017, under Sections 452, 376, 506, 504 I.P.C., Section 3(2)5 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and 4 of The Protection of Children From Sexual Offences Act, P.S. Kotwali Dehat, District Banda, 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 appellant is innocent and has been falsely implicated in this case by the first informant who belongs to Scheduled Caste. It is stated that F.I.R. was lodged after four months of the alleged incident of rape by the applicant on the minor daughter of the first informant on 9.7.2017. It is averred that on 6.7.2017, first informant was told by the victim that about four months' back, the appellant had come to her house and had raped her. She is also carrying pregnancy. In the F.I.R., it is stated that younger daughter of the first informant, Km. Khushbu aged about 10 years also witnessed the incident. He has further contended that the victim in her statement recorded under Section 164 Cr.P.C. has merely stated that the appellant had attempted to commit rape with her but he could not succeed in his evil design as her sister reached there. She has further stated that there was enmity between the applicant and his mother and maternal uncle. He next stated that charge against the appellant was framed on 4.1.2018 and more than 12-13 dates have been fixed but neither the prosecutrix nor the first informant are appearing before the trial court. In this regard, he has filed certified copy of the order-sheet of the trial court. Learned counsel for the appellant further submitted that learned court below has also failed to consider that appellant has no criminal history to his credit and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses. There is no early possibility of conclusion of trial. Thus the appellant, who is in jail since 14.07.2017, deserves to be released on bail.
Learned AGA has vehemently opposed the bail prayer and submitted that the victim is a minor girl. However, he could not dispute the contradictions in the version set up in the F.I.R. and the statement of the victim recorded under Section 164 Cr.P.C. in which she has stated that the appellant had attempted to rape her..
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 15.11.2017 passed by learned Additional Sessions Judge, Court No.1, Banda is set aside.
Let appellant-applicant-Dinesh Kahar,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 :- 24.8.2018 MN/-