Court No. - 54
Case :- CRIMINAL APPEAL No. - 4352 of 2017 Appellant :- Pintu Yadav Respondent :- The State Of U.P. & Another Counsel for Appellant :- Ankit Srivastava,Shyam Shanker Pandey Counsel for Respondent :- G.A.
Hon'ble J.J. Munir,J.
1. The counter affidavit filed on behalf of the State today, is taken on record.
2. Heard Sri Shyam Shankar Pandey, learned counsel for the appellant and Sri Indrajeet Singh, learned A.G.A. along with Sri Vivek Dubey appearing on behalf of the State.
3. This is an appeal from an order of Sri Anil Kumar Upadhyay, Special Judge (SC/ST Act)/ Additional Sessions Judge, Ghaziabad, dated 26.07.2017 made in bail application no.3465 of 2017, relating to case crime no.314 of 2014, under Sections 376, 504, 506 IPC and Section 3(2)5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘Act’) rejecting the aforesaid bail application.
4. There is no appearance on behalf of the opposite party no.2, even though as per report of the learned Chief Judicial Magistrate, Ghaziabad, the opposite party no.2 was personally served. In accordance with the office report dated 14.09.2017, service upon the opposite party no.2 is held sufficient.
5. In the counter affidavit filed on behalf of the State by one Atish Kumar Singh, posted as Circle Officer, Sadar, Ghaziabad, the complainant/ opposite party no.2 has been informed about filing of the present appeal on 12.09.2017 and a receipt to that effect has been secured from the second opposite party. A copy of communication dated 12.09.2017 to the opposite party no.2 is annexed as Annexure no. CA-1 to the counter affidavit. Thus, there is good compliance of Sections 15(A)(3) & (5) of the Act also.
6. The short case of the prosecution is that the incident took place on 19.06.2017 at 12:30 hours and the First Information Report came to be lodged by the informant Vinod Kumar, who is a cousin to the victim/ prosecutrix on the same day at 18:20 hours. The allegation is that on 19.06.2017 at 12:30 hours when the prosecutrix was going to her work, where she is employed as a house-maid, the appellant Pintu sneaked up behind her, riding his vehicle, and pulled the prosecutrix inside. It is alleged that he drove the car via Kudia Garhi to the east peripheral Expressway and thence to the jungle area Bhur Garhi, where he confined the prosecutrix inside the car and ravished her.
7. The learned court below upon a consideration of the bail application and hearing counsel for both sides, by means of the impugned order has proceeded to reject the bail application holding that prima facie the prosecutrix was ravished by the appellant after carrying her off in his car with the doors locked from within. The learned court below has referred to the statements of the prosecutrix recorded under Section 161 Cr.P.C. and, particularly, her statement under Section 164 Cr.P.C., where she has stood by the prosecution story. The learned court below held that since the appellant forcibly carried off a 25 years old woman and committed a heinous offence, looking to the nature and gravity of the offence, he is not entitled to be enlarged on bail.
8. Before this Court, it has been contended by learned counsel for the appellant, that the prosecutrix is a married woman aged about 25 years, who has thee children; and that there are inherent contradictions in the statements of the prosecutrix recorded under Sections 161 & 164 Cr.P.C. It has been urged that the prosecutrix is a consenting party and had gone of her free will with the appellant. It was only when the informant Vinod Kumar saw the two together, that the prosecutrix under family and social pressure, changed the story and implicated the appellant falsely. It has been emphasized that the prosecutrix has done nothing that would show that during the entire alleged episode, she raised any alarm or resisted or did any act to repel violence or to invite attention of any passersby while she was being carried off. It is also pointed out that there is no witness, at least about the victim being carried off in the car as alleged. It has also been emphasized that there is no medico-legal report, even of a single injury found on the person of the prosecutrix, which would be there in case an assault of the kind and in the manner had actually been suffered by the victim. It has been emphasized that the appellant has no criminal history and the evidence against the appellant is not good enough to keep him in jail pending trial, where he has already done about 9 months.
9. Learned A.G.A. has opposed the appeal seeking reversal of the order and pointed out that the statement of the prosecutrix under Section 164 Cr.P.C. is very clear, where she has said that she was put under fear of her three children being done to death (presumably in case she resisted). She has said that after ravishing her, the appellant dumped her at Dudhia Peepal, Dasna, and, she narrated the occurrence to Vinod Kumar, the first informant, who is a brother and in turn, Vinod Kumar told the other family members. She has also stated that she hails from the scheduled caste, known as Jatav (which would be of relevance looking to the charges under the Act).
10. The submission of the learned counsel for the appellant that there is no evidence against him showing his complicity in the offence is not well founded looking to the categorical statement of the prosecutrix under Section 164 Cr.P.C., which is consistent with the FIR and the statement under Section 161 Cr.P.C. The fact that the medico-legal report does not positively indicate rape is well known to be not an index of falsehood of a charge of rape. The solitary statement of the prosecutrix, if reliable, is enough to sustain a conviction. In the instant case, the statement of the prosecutrix under Section 164 Cr.P.C. is an important piece of evidence, which is a statement made on oath before a Judicial Magistrate. It may be that at the trial the prosecution evidence may stand scrutiny or may fail, but at this stage which is that of appeal and this appeal is confined to the issue of bail, there is prima facie evidence about the complicity of the appellant. Consequently, this appeal fails and is hereby dismissed.
11. It is directed that the court below shall proceed with and dispose of the trial expeditiously, if possible, within six months next from the date of receipt of certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar V. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
12. It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence positively.
13. Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 28.3.2018 S. Thakur/ Anoop