Court No. - 71
Case :- CRIMINAL APPEAL No. - 4140 of 2018 Appellant :- Guddar And 2 Others Respondent :- State Of U.P.
Counsel for Appellant :- Vimal Chandra Pathak,Apul Misra,Shyam Sunder Mishra Counsel for Respondent :- G.A.,Amit Kumar Singh
Hon'ble Siddharth,J.
Order on the Criminal Appeal List this appeal for hearing in due course.
Order on the Criminal Misc. Bail Application Counter and rejoinder affidavit have been exchanged.
Heard learned counsel for the appellant nos. 2 and 3 and learned A.G.A. for the State.
The submission is that the appellant nos. 2 and 3 were although named in the F.I.R. but the Investigating Officer did not found their role in the entire offence and therefore final report was submitted in their favour. Subsequently by means of an application 319 Cr.P.C., they were summoned for trial by the trial court and convicted along with appellant no. 1, the main accused. It has been submitted that the prosecution story is improbable since the appellant nos. 2 and 3 are the real Mamas of the appellant no. 1 and there is allegation that they took the victim to the house of their real sister where the appellant no. 1 committed rape on her.
The counsel for the appellant nos. 2 and 3 has relied upon the judgment of this court in the case of Doctor @ Vinod Kumar and Another vs. State of U.P. 2016 Law Suit (All) 966, wherein this court in paragraph 31 has held in the case that where two real brothers were alleged to have committed rape on a girl it is a very delecate relationship and generally two brothers cannot be said to have committed rape on a girl simultaneously. The counsel for the appellant nos. 2 and 3 has further submitted that the medical report does not supports the prosecution case at all. Doctor has not given any opinion of rape or any unnatural intercourse with the victim. The first information report was delayed by about a month and there is no cogent explanation for the same on record. The appellant nos. 2 and 3 are in jail since 05.07.2018 and were on bail during trial. This appeal is of the year 2018 and it is not likely to be decided in near future.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by learned counsel for the appellant nos. 2 and 3.
Considering the arguments advanced, facts and circumstances of the case as well as the sentence awarded to the appellant, this court is of the opinion that the appellant nos. 2 and 3 are entitled to be released on bail.
Let the appellant nos. 2 and 3- Anil Kumar and Shrawan Kumar, convicted and sentenced in Sessions Trial No. 229 of 2010 (State vs. Guddar and others) arising out of Case Crime No. 102 of 2008, under Sections- 363, 366, 376(2)(chha) and 377 I.P.C., Police Station- Gaur, District- Basti, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.
The realization of half of the fine awarded against the appellant nos. 2 and 3 shall also remain stayed during the pendency of the appeal.
On acceptance of bail bonds and personal bond of the appellant nos. 2 and 3, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
Order Date :- 25.2.2019 Rohit