Court No. - 29
Case :- CRIMINAL APPEAL No. - 2416 of 2018 Appellant :- Kamal Kant @ Gaurav Tiwari Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Ram Kumar Counsel for Respondent :- G.A.,Sanjay Srivastava
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
This appeal is against the order dated 3rd February, 2018 passed on the bail application moved by the appellant. Learned counsel for the appellant submit that there is variation in the story given in the FIR and the statement of the prosecutrix under Section 164 Cr.P.C. Self contradiction makes it clear that false allegations have been made against the appellant. He also submits that the prosecutrix was in relation and in a case of consent, offence under Section 376(2)(g) IPC would not made out. A reference of the judgment of the Apex Court in the case of Uday Vs. State of Karnataka (2003) 4 SCC 46 has been given where the conviction was interfered finding consent of the girl. A reference of the rejoinder to the counter affidavit has also been to show that prosecutrix has refer appellant to be husband and thereby no case is made out for offence under Sections 366 and 376(2)(g) IPC apart from other offences.
I have considered the submissions made by the counsel for the appellant and find that the bail application was dismissed by the learned Court below taking into consideration the allegations. It is not only in reference of the FIR but the statement under Section 164 Cr.P.C. The FIR is not considered to be encyclopedia. The consideration of the statement of the prosecutrix under Section 164 Cr.P.C. is to be made. The specific allegations has been made against the appellant for commission of the offence. It does not show a case of consent and otherwise aforesaid would be considered in the trial. In absence of any material to show a case of consent, the judgment of the Apex Court in Uday (supra) would not apply and otherwise the judgment therein was on conviction and not in a case where a bail application was rejected.
In view of the above, we do not find any case for grant of bail. However, the opinion expressed herein would not affect the trial rather the consideration of the case would be in reference to the evidence led in the trial.
The appeal is accordingly dismissed. The trial court however is directed to expedite the proceedings.
Order Date :- 29.7.2021 VMA (Munishwar Nath Bhandari, A.C.J.)