Court No. - 52
Case :- CRIMINAL APPEAL No. - 3410 of 2017 Appellant :- Narendra Respondent :- State Of U.P. & Another Counsel for Appellant :- Gaurav Kakkar Counsel for Respondent :- G.A.,Prashant Sharma,Sayed Faiz Hasnain,Shilpa Ahuja
Hon'ble Rajul Bhargava,J.
Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Anshul Tiwari, learned counsel for the appellant, Sri Prashant Sharma, Sri Sayed Faiz Hasnain and Ms Shilpa Ahuja, learned counsel for the first informant and learned AGA for the State and perused the record.
This appeal has been filed against judgement and order dated 24.5.2017 of learned Additional Sessions Judge/ Special Judge (SC/ST Act), Amroha passed in Bail Application No. 855 of 2017 arising out of Case Crime No. 227 of 2016, under Sections 376-Gha, 506 I.P.C. and Section 3(2)5 of SC/ST Act, P.S. Mandi Dhanaura, District Amroha, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law. It is further submitted that the appellant has been falsely nominated in the present case by the first informant due to enmity. It has been argued that reason for false implication of the applicant is that applicant's aunt, Smt. Veena has lodged F.I.R. on 20.5.2017, registered as Case Crime No.146 of 2016 under Sections 147, 148, 149, 323, 336, 354-B, 452, 504 and 506 I.P.C. The said F.I.R. related to the incident dated 19.5.2016. After investigation charge sheet has been submitted against the husband of the prosecutrix and others on which cognizance has also been taken by the concerned court on 28.1.2017. He has further submitted that no F.I.R. was lodged by the prosecutrix about the alleged gang rape committed by the applicant and other accused on 17.5.2016. The F.I.R. was lodged on an application moved under Section 156(3) Cr.P.C. on 11.6.2016 after the orders of the concerned Magistrate. The investigation was conducted by an officer of Deputy Superintendent of Police Rank and he submitted final report dated 25.10.2016 against which prosecutrix filed protest petition and the applicant and other accused were summoned while rejecting the final report. He has further submitted that prosecution case of gang-rape is not supported by medical evidence. The prosecutrix was medically examined on 28.6.2017. No external injury was noted by the doctor on her person. He has further submitted that prosecution has shown criminal history of ten cases against the applicant. All the cases shown against the applicant have been explained in the supplementary affidavit. The offences alleged against the applicant are of petty nature. Therefore, the appellant who is languishing in jail since 18.5.2017, deserves to be released on bail.
Per contra,learned AGA as well as learned counsel for the first informant while opposing the aforesaid submissions of learned counsel for the appellant submitted that it is case of gang-rape by appellant and two others and as the police was colluding with the accused, the F.I.R. was not registered. The prosecutrix has fully supported the prosecution version of gang-rape in her statement recorded under Section 164 Cr.P.C. It is further submitted that the applicant has criminal history of ten cases. However, they could not dispute the fact that most of cases against the applicant are under Section 25 of Arms Act. They could also not dispute that after thorough investigation, final report was submitted and the appellant has been summoned to face trial after rejection of final report.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 24.5.2017 of learned Additional Sessions Judge/ Special Judge (SC/ST Act), Amroha is set aside.
Let appellant-applicant-Narendra,be released on bail in aforesaid case on his 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 :- 30.4.2018 MN/-