Court No. - 71
Case :- CRIMINAL APPEAL No. - 3770 of 2019 Appellant :- Kamlesh Kahaar Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Nripendra Kumar Dwivedi Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
This criminal appeal under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed challenging the order dated 10.5.2019 passed by Special Judge, SC/ST Act, Chitrakoot in Bail Application no.
409 of 2019 in S.S.T. No. 12 of 2019 (State Vs. Kamlesh Kahaar), arising out of Case Crime no. 769 of 2018, under Sections 376, 506 IPC and 3(2) V of SC/ST Act, P.S. Karvi, District- Chitrakoot, seeking bail in the aforesaid sections.
In para- 3 of the counter affidavit filed on behalf of the State by Circle Officer, City Karvi, District- Chitrakoot, it has been stated that the notice regarding filing of the present criminal appeal was given to the opposite party no. 2 on 16.5.2019, a copy of which has been annexed as Annexure No. 1 to the counter affidavit, however despite service of notice, none has appeared.
Learned counsel for the appellant has submitted that as per the allegations made in the first information report, it is stated that the complainant's husband was ailing, as such the appellant made consensual relation with her. However, after the death of her husband, the appellant started distancing himself from her and their relation ended, However on 28.11.2018 on the pretext of paying her the due money, the appellant had taken her on a motor-bike and committed rape upon her. Learned counsel for the appellant has next submitted that the victim is a women of 37 years and is a major and during the medical examination, no visible injury has been found on her person and even at the time of incident,no alarm has been raised by her. Learned counsel for the appellant has next submitted that appellant is in jail since 10.5.2019 and has no criminal history to his credit.
Per contra, learned A.G.A. has opposed the prayer for bail, but could not dispute the aforesaid facts and the fact that appellant is in jail since 10.5.2019 and has no criminal history to his credit.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, the appeal has substance.
The impugned order dated 10.5.2019 passed by Special Judge, SC/ST Act, Chitrakoot, is set-aside and the bail application of appellant stands allowed.
Let the appellant Kamlesh Kahaar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to 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 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 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 :- 31.7.2019 KU