Heard learned counsel for the appellant, learned AGA and perused the record.
Admit.
Summon the lower court record.
List after receipt of lower court record.
Order Date :- 21.12.2018 Nisha .
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Ref:- Order on Crl. Misc. Bail Application No. 1 of 2018
Heard Ms. Ruchita Jain, learned counsel for the appellant, learned AGA and perused the record.
By means of the present criminal appeal the appellant is assailing the judgment and order dated 27.11.2018 passed by learned Additional Sessions Judge/ Fast Track Court, Jhansi by which the appellant has been convicted u/s 363 IPC to undergo 3-1/2 years imprisonment with fine of Rs. 5,000/- and in default of payment 3 months additional imprisonment; under section 366 IPC to undergo 5 years imprisonment with fine of Rs. 5,000/- and in default of payment 3 months additional imprisonment; under section 376 IPC to undergo 7 years rigorous imprisonment with fine of Rs. 10,000/- and in default of payment 6 months additional imprisonment.
Submission made by the counsel for the appellant that the prosecution story rolling by filing of FIR by father of the victim mentioning therein that the age of the prosecutrix is 17 years. She went to school on 25.01.2011 and her whereabouts were not known qua another 2-3 days and consequently, he lodged the FIR on 07.02.2011. The victim was eventually recovered on 12.02.2011 i.e. about 18 days in her statement from the deposition it has been culled out that she has remained in the company of the applicant and went to Orcha forest and thereafter Bhopal without any resistance. In her deposition she further states that the appellant has established physical relationship against her wish and desire but her conduct shows that there is no resistance or objection as there is no mark of injury over her private part, she remained in the company of the appellant for 18 good days and visited numerous places without any resistance. In the examination-in-chief she has made a statement but during her cross-examination she further developed it by adding an angel of threat by showing the firearm on her temple and making her blind fold. The PW-3 Gopal Singh is the star witness of the incident, who in his testimony disclose the fact that on the fateful day he met with the prosecutrix and inquired about with whom she is going on but she did not replied of his query and went alongwith the applicant. The testimony of Gopal Singh is the stark contrast with the testimony of P.W.-2, the prosecutrix herself. For buttress his contention the learned counsel for the appellant has relied upon the latest citation of Hon'ble Apex Court in the Case of Rajak Mohammad Vs. State of Himachal Pradesh (Criminal Appeal No. 1395 of 2015) decided on 23.08.2018. It has next been submitted that she appears to be a consenting party of the entire episode. He lastly submitted that the applicant/appellant was on bail during the trial and he has not misused the liberty of bail, so the applicant should be enlarged on bail.
Per contra learned AGA opposed the prayer for bail and submitted that there is sufficient evidence against the appellant so he should not be entitled to be enlarged on bail.
After having heard the submissions made by learned counsel for the parties, I find that the applicant/appellant is entitled to be enlarged on bail.
Let the the applicant/appellant Muniya @ Narendra Singh Yadav, be released on bail in S.T. No. 120 of 2011 arising out of case crime no. 67 of 2011, under Sections 363, 366, 376 IPC, P.S. Sipri Bazar, District Jhansi during the pendency of the appeal, on his each furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
Subject to the appellant depositing 50% of the fine within a period of one month and the remaining amount of fine shall remain stayed during pendency of the appeal.
On acceptance of bail bonds, the lower court record shall transmit photostat copies thereof to this Court for being kept on record of this appeal.
Order Date :- 21.12.2018 Nisha