Court No. - 52
Case :- CRIMINAL APPEAL No. - 3498 of 2018 Appellant :- Gulshan Respondent :- State Of U.P. And Another Counsel for Appellant :- Mohd. Akbar Shah Alam Khan Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
The order-sheet of this case reflects that notice as directed by this Court has been served on opposite party no.2 but no one has appeared on her behalf to argue the instant appeal.
Heard Shri Mohd. Akbar Shah Alam Khan, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against the judgement and order dated 30.5.2018 passed by Additional Sessions Judge, Court No.2, Muzaffar Nagar, in Bail Application No.2072 of 2018 (Gulshan vs. State of U.P.), arising out of Case Crime No.148 of 2018, under Sections 376 I.P.C., 67 Information Technology Act & section 3(2)5 of SC/ST Act, P.S. Jansath, District Muzaffar Nagar, by which bail plea of appellant has been rejected.
Submission of learned counsel for the appellant is that he is not nominated by the prosecutrix in the first information report lodged by her after seven days of the incident. In the first information report, she has alleged that her husband was murdered by three named accused and on 11.4.2018 at about 8 A.M. when she was working in the field, all the named accused reached there and they raped her. It is also stated that the said accused has also prepared video clip and had made it viral. There is no averment in the first information report that besides three named accused there was any other person involved in commission of offence. She did not name the appellant in the statement under Section 161 Cr.P.C. However, in the statement under Section 164 Cr.P.C. she exonerated the named accused against whom the allegation of gang rape was made by her in the first information report and for the first time she stated that the appellant had raped her. Lastly, it is submitted that he was falsely implicated for some cases which have been duly explained in the supplementary affidavit, filed today which is taken on record.
Per contra, learned AGA vehemently opposed the bail and submitted that the victim has unequivocally stated about involvement of appellant in the statement under Section 164 Cr.P.C.
Having heard the submission of learned counsel for the applicant-
appellant, considering the facts and circumstances of the case and 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 stands allowed. The order dated 30.5.2018 passed by Additional Sessions Judge, Court No.2, Muzaffar Nagar, in Bail Application No.2072 of 2018 (Gulshan vs. State of U.P.), arising out of Case Crime No.148 of 2018, under Sections 376 I.P.C., 67 Information Technology Act & section 3(2)5 of SC/ST Act, P.S. Jansath, District Muzaffar Nagar, is set aside.
Let appellant-applicant- Gulshan, 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 Hasnain