Court No. - 53
Case :- CRIMINAL APPEAL No. - 4177 of 2017 Appellant :- Jitendra Kumar Respondent :- State Of U.P. And 2 Othrs.
Counsel for Appellant :- Lal Mani Singh,Raghuvir Sharan Singh Counsel for Respondent :- G.A.
Hon'ble Ghandikota Sri Devi,J.
Heard learned counsel for the appellant and learned A.G.A. for the State and perused the record.
This criminal appeal under Section 14A (2) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') has been filed on behalf of the appellant, challenging the order dated 27.01.2017 passed by Learned Special Judge (POCSO Act) / Additional Sessions Judge Court No. 14, Kanpur Nagar, in Criminal Misc. Bail Application No. 200 of 2016 arising out of Case Crime No. 523 of 2016, under Sections 376D, 323, 506 I.P.C., Section 5-G/6 Protection of Children from Sexual Offences Act and Section 3(2)(v) of S.C. /S.T. Act, Police Station Panki, District Kanpur Nagar (Jitendra Kumar Versus State of U.P.) It has been contended by the learned counsel for the appellant that according to the prosecution version, the daughter of the informant, was the student of Class-IX; that on 15.11.2016 she has gone to school and she was subjected to sexual harassment by co-accused Ankit Yadav and two others i.e. present accused/appellant and one Kallu; that further case of the prosecution is that the victim disclosed the names of accused/appellant and other co-accused and thereafter, the FIR was lodged implicating all the three accused, who were said to have committed rape on her; that the prosecutrix was medically examined on 16.11.2016 and 18.11.2016; that the statement of the informant and prosecutrix were recorded under Section 161 Cr. P.C. on 16.11.2016; that supplementary medico legal report and certificate granted by the C.M.O. on 21.11.2016 specifically shows that the age of the prosecutrix was 18 years on the date of alleged occurrence; that the statement of the prosecutrix under Section 164 Cr. P.C. was recorded on 18.11.2016; that the prosecution story is absolutely false and concocted with ulterior motive; that as per the case of the prosecutrix herself, the co-accused Ankit Yadav was said to be a close friend of the prosecutrix, both of them were having love affair with each other and on the alleged date of occurrence, the prosecutrix eloped with Ankit Yadav, and on the way they were seen by some body of the locality and on suspicion, FIR was lodged against Ankit Yadav, so also falsely implicating the present appellant other co-accused; that in her statement under Section 161 Cr. P.C. as well as 164 Cr. P.C. the prosecutrix nominated two accused, hence the version of the prosecutrix belies the entire prosecution story; that looking into the age of the prosecutrix, it seems that prosecutrix is a consenting party and she was not subjected to any rape as alleged by her, which is also evident from the medical report in which no mark of any injuries were found on her body; that appellant has no criminal history; that appellant is in jail since 17.11.2016.
Per contra, learned A.G.A. opposed the prayer for bail and submitted that appellant and other co-accused have committed rape on the prosecutrix. It is further submitted that there is no infirmity or illegality in the impugned order passed by the trial court, hence, the appellant is not entitled for bail Upon hearing the learned counsel for the parties and perusal of record, and on considering the facts and circumstances of the case, without adverting to the merits of the case, I am of the considered view that the bail rejection order dated 27.01.2017 passed by the learned Trial Court is liable to be set aside.
In the result, the appeal succeeds and the same stands allowed. The aforesaid impugned order is hereby set aside.
Let the appellant Jitendra Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned with following conditions:-
1. The appellant will continue to attend and co-operate in the trial pending before the court concerned on the date fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge in any illegal activities during the bail period.
It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 26.2.2019 T.S.