Court No. - 74
Case :- CRIMINAL APPEAL No. - 1706 of 2021 Appellant :- Gore Lal @ Gore Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Rahul Pandey Counsel for Respondent :- G.A.,Vikas Singh
Hon'ble Pradeep Kumar Srivastava,J.
Counter affidavit filed by learned A.G.A. today in the Court is taken on record.
Heard learned counsel for the appellant, learned counsel for the informant, learned A.G.A. for the State and perused the record.
This criminal appeal has been filed by the appellant Gore Lal @ Gore Yadav with a prayer to set aside the judgment and order dated 08.03.2021, passed by Special Judge SC/ST Act/Additional Sessions Judge, District Fatehpur rejecting the bail application of the accused-appellant, in Case Crime No.194 of 2018, under Sections 376 (2) (Ja), 323, 504, 506 I.P.C. and Section 3 (2) (V) SC/ST Act, Police Station Jafarganj, District Fatehpur.
F.I.R. version is that incident took place on 20.08.2018 in respect of which on 16.11.2018 F.I.R. was lodged by the respondent no.2 making allegation that she is a women of Scheduled Caste and is a poor labour. Her husband is a labour, who normally lives outside and the informant lives alone with her two years old daughter and that the appellant used to pass comments upon her and used to keep an eye on her. On the said day when she has gone to ease, the appellant came and committed maarpeet with her and committed rape on her. He also used casteist words. At the time of incident she was having pregnancy of seven months and information was given to the police but the police did not lodge her report. She also sent a registered report to the concerned Senior Superintendent of Police but nothing happened and she gave an application under Section 156 (3) Cr.P.C. on 28.08.2018 whereupon order was passed and F.I.R. was registered on 16.11.2018.
Submission of learned counsel for the appellant is that in pursuance of the F.I.R. investigation was conducted and no evidence was found therefore final report was submitted but the Court did not accept the final report and therefore further investigation was started and again after further investigation, final report was submitted against that final report, protest application was filed whereupon accused was summoned for the offence under the aforesaid Sections. Submission of learned counsel is that final report was filed twice in the matter, which shows that there was no evidence against the appellant and on protest, the appellant has been summoned. This fact appears to have been ignored by the learned Special Judge, while rejecting the bail application, therefore the impugned order suffers from illegality and is liable to be set aside. The accused-appellant has no previous criminal history. He has been in jail since 11.02.2021. The accused-appellant is prepared to furnish the surety and bond.
Learned A.G.A. and learned counsel for the informant has vehemently opposed the the prayer and has submitted that the impugned order has been passed by the learned court below after considering all the relevant facts and also considering the fact that victim was women of scheduled caste and therefore there is no illegality in the impugned order and thus the appeal deserves to be rejected.
It has been submitted by learned counsel for the informant that victim has supported the F.I.R. version in her statements under Section 161 and 164 Cr.P.C. wherein she has specifically named the appellant and therefore the impugned order is sustainable.
Considered the submissions of rival sides. The police did not find sufficient evidence and submitted final report, thereafter on the protest of the victim, the Court below has summoned the appellant, which fact appears to have been ignored by learned Special Judge that police has submitted final report for the reasons that substantial evidence was not available. This fact should have been taken into consideration by learned Special Judge and should have also considered the factum that there is material improvement and contradiction in the statements of the victim. Moreso, it is relevant fact that the whole proceedings has been initiated after moving an application under Section 156 (3) Cr.P.C. and the police did not find sufficient evidence against the appellant. What is true and what is incorrect is subject matter of trial and that will be considered by learned Special Judge after taking the evidence. The appellant is in jail for the last more than five months Considering the entire facts and circumstances of the case, I find that the learned court below has 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 dated 08.03.2021, passed by Special Judge SC/ST Act/Additional Sessions Judge, District Fatehpur rejecting the bail application of the accused-appellant, in Case Crime No.194 of 2018, under Sections 376 (2) (Ja), 323, 504, 506 I.P.C. and Section 3 (2) (V) SC/ST Act, Police Station Jafarganj, District Fatehpur, is hereby set aside.
Let the appellant namely Gore Lal @ Gore Yadav is released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The 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 appellant 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 appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The 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 appellant to prison.
Order Date :- 29.7.2021 S.Ali