Court No. - 74
Case :- CRIMINAL APPEAL No. - 363 of 2021 Appellant :- Manish Sindhi Respondent :- State Of U.P. And Another Counsel for Appellant :- Siya Ram Sahu Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant and learned AGA for the State and perused the record.
Notice was sent to respondent no.2 and according to the report of the CJM, concerned dated 8.2.2021, the same has been personally served.
This appeal has been filed by appellant Manish Sindhi against the impugned order dated 18.12.2020 passed by learned Special Judge, SC/ST Act/Additional Sessions Judge, Banda passed in Bail Application No. 1300 of 2020, arising out of Case Crime No.703 of 2020, under Sections 376D, 328, 506 I.P.C. and Section 3(2)5 of SC/ST Act, P.S. Kotwali Nagar, City, District Banda by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
The FIR version is that the minor daughter of the informant used to go to coaching. In the month of April, 2019, when she went for coaching, the accused appellant and co-accused Sagar Sonkar met him on their motorcycle and administered some intoxicant in the cold-drink, therefore, the victim became unconscious. Both took her to the house of co-accused Sagar Sonkar, who committed rape on her and during the incident the accused appellant was outside the room. The co-accused Sagar Sonkar also takes some obscene photograph of the incident and threatened her that they will get the photo viral. Therefore, the victim got apprehensive and on the basis of that photograph co- accused Sagar Sonkar from April, 2019 continuing regularly committed rape on the victim. Thereafter, when it became intolerable to the victim she told about the happening to the informant and on 13.08.2020 an application was given in the police station. The statement of the victim was recorded under Section 161 Cr.P.C. and in that statement also she has made allegation of rape being committed by the co-accused Sagar Sonkar and has stated that during that period the accused appellant was sitting outside. She was further examined before the Magistrate and her statement under Section 164 Cr.P.C. is on record and in that statement given before the Magistrate, she has again stated the fact that the rape was committed by co- accused Sagar Sonkar. In the remaining part of the statement, she has stated about the consistent threatening being advanced by the accused persons to defame in the society.
Submission of learned counsel for the appellant is that the appellant is challenging the impugned order on the ground that the same is arbitrary, illegal and is not sustainable in the eyes of law and has been passed against weight of evidence available on record. It has been further submitted that the victim has made allegation of rape against the co-accused Sagar Sonkar but in respect of accused appellant she has not stated that he also committed rape as per her own knowledge and has stated that this fact was brought in the knowledge of the victim as accused persons. It has also been submitted that the incident started taking place since April, 2019 and after about 16 months the FIR has been lodged and it also creates suspicion on the story of the FIR. It has been submitted that as there is no specific allegation against the appellant about rape being committed by the accused appellant, Further submission is that where the relationship has continued for more than 15 months, it cannot be said that the same continued forcefully and this aspect cannot be ruled out that there was a consensual relationship. The FIR is grossly delayed and no specific role has been assigned to the appellant with the commission of the offence nor the victim has stated in her statement under Section 164 Cr.P.C. that the accused appellant also committed rape on her. She has stated that it was told by the co-accused Sagar Sonkar that the appellant also committed rape on her. Therefore, it has been submitted that the learned Special Judge, SC/ST Act has ignored the material aspect and has rejected the bail application illegally, which is liable to be set aside. Further submission is that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA has vehemently opposed the prayer and submitted and has submitted that charge-sheet has already been filed by the police after investigation.
Considered the submissions of both sides. This fact cannot be denied that there is unreasonable delay in lodging the FIR, there is no specific allegation of rape against the appellant and his case is entirely different in comparison to the case of co- accused Sagar Sonkar. The FIR is grossly delayed and explanation given for the delay makes the version seriously doubtful and this possibility cannot be ruled out that there was a consensual relationship between the victim and co-accused Sagar Sonkar and subsequently for some reason the FIR has been lodged against both of them. The FIR version is that during the commission of the offence the accused appellant was sitting out side the room. This also shows that the involvement of the accused appellant in the commission of the offence of gang rape is doubtful. As such, I find that the learned Special Judge, SC/ST Act has ignored the material fact in the case and has illegally rejected the bail application, therefore, the impugned order is liable to be set aside.
In the result, appeal is allowed. Impugned order dated 18.12.2020 passed by learned Special Judge, SC/ST Act/Additional Sessions Judge, Banda is set aside.
Let appellant-applicant Manish Sindhi be released on bail in Bail Application No. 1300 of 2020, arising out of Case Crime No.703 of 2020, under Sections 376D, 328, 506 I.P.C. and Section 3(2)5 of SC/ST Act, P.S. Kotwali Nagar, City, District Banda on 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 :- 16.8.2021 Mini