Court No. - 52
Case :- CRIMINAL APPEAL No. - 3271 of 2018 Appellant :- Rahul Vishwakarma Respondent :- State Of U.P. And Another Counsel for Appellant :- Mithilesh Kumar Ojha Counsel for Respondent :- G.A.
Hon'ble Rajul Bhargava,J.
As indicated in the counter affidavit filed by the learned A.G.A., notice has been served personally on respondent No.02, yet no one has appeared on his behalf to oppose the bail prayer in the instant appeal.
Heard Sri Mithilesh Kumar Ojha, learned counsel for the appellant, learned AGA for the State and perused the record.
This appeal has been filed against judgement and order dated 30.5.2018 passed by learned Special Judge (SC/ST Act),Allahabad passed in Bail Application No. 1849 of 2018 in S.T. No.197 of 2017 arising out of Case Crime No. 0280 of 2017, under Sections 376, 377, 323, 506, 354 I.P.C. and Section 3(2)5 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, P.S. Naini, District Allahabad, 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 prosecutrix is aged about 22 years and she has also disclosed same age in her statement recorded before the Magistrate. In fact the appellant and prosecutrix were in live in relationship for one and half years but it could not materialize in marriage, the prosecutrix lodged F.I.R. after about one and half years after first incident of alleged commission of rape by the appellant. He has referred to the statement of prosecutrix recorded under Section 164 Cr.P.C. in which she has stated that she had lived with appellant in Naini for about seven months where with her consent physical relations were established. Learned counsel for the appellant further submitted that learned court below has also failed to consider that appellant has no other criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.The appellant, who is in jail since 22.4.2018, deserves to be released on bail.
Learned AGA has vehemently opposed the bail prayer.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, age of the appellant and nature of accusation against appellant and evidence in support of it 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 30.5.2018 passed by learned Special Judge (SC/ST Act), Allahabad is set aside.
Let appellant-applicant- Rahul Vishwakarma, 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 appellant to prison.
Order Date :- 25.7.2018 MN/-