Order on Delay Condonation Application No.61572 of 2018 Heard Sri Sumit Kumar Srivastava for the appellant and Ajay Srivastava for State on application seeking condonation of delay in filing the appeal. None for respondent no. 2 though served.
For the reasons mentioned in the application, the same is allowed.
Delay in filing the appeal is condoned.
Order on Appeal Admit.
The appeal is formally admitted for hearing. With the consent of parties, the case is heard finally.
Challenge in the present appeal is to the impugned order dated 09.11.2017 passed by the Additional Sessions Judge/Court No. 1 Pratapgarh in Bail Application No. 1784 of 2017, whereby the court below has rejected the application as filed by the appellant for grant of bail, arising out of Crime No. 44/2017, under Sections 302, 201, 376 of I.P.C. read with Section 3/4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 & 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Udaipur, District Pratapgarh.
As per prosecution case, on 18.04.2017, a missing report was lodged by Chotka, wife of Pancham Saroj alleging in it that from 17.04.2017, her daughter aged about 18 years is missing. On 18.04.2017, dead body of the deceased was recovered from a nearby field of village Ranjeetpur. Further case of the prosecution is that the appellant and the deceased were having affair and that is why, the appellant had killed her.
Counsel for the appellant submits:
(i) that there is no legally admissible evidence against the appellant connecting him with the murder of the deceased. The only piece of evidence collected by the prosecution is that the appellant had provided cell phone to the deceased and the said cell phone was being used while having conversation between the two. Even if the factum of giving cell phone to the deceased is accepted this itself would not constitute any offence against the appellant.
(ii) that neither there is any evidence of committing murder of the deceased nor there is any evidence that the deceased was subjected to rape by the appellant.
(iii) that the application of the appellant has been rejected by the court below on the ground that a serious crime has been committed under SC/ST Act.
(iv) that in the counter affidavit filed by the State, it has been stated that DNA of the deceased and the appellant is matching but later on supplementary counter affidavit has been filed by the State clearly mentioning therein that the fact of matching the DNA was wrongly mentioned in the counter affidavit filed by the State.
(v) that the provisions of the SC/ST Act do not attract against the appellant, as it is not the case of the prosecution that because she belongs to a particular caste, she was subjected to offence by the appellant.
(vi) that the appellant is in jail since 22.04.2017 and the trial may take some time for its final disposal, therefore, the appellant be released on bail.
On the other hand State counsel opposes.
Considering the totality of the case, in particular, the nature of allegation leveled against the appellant and the evidence collected by the prosecution, without further commenting on merit, I am inclined to release the appellant on bail.
Accordingly, the appeal is allowed and the impugned order is set aside.
Let the appellant Raja Babu @ Jitendra Singh be released on bail in the aforesaid case crime number on furnishing a personal bond in the sum of Rs.50,000/- (Fifty Thousand) and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The appellant shall file an undertaking to the effect that he/she shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The appellant shall remain present before the trial court on each date fixed, either personally or through his/her counsel. In case of his/her absence, without sufficient cause, the trial court may proceed against him/her under section 229-A I.P.C.
(iii) In case, the appellant misuses the liberty of bail during trial and in order to secure his/her presence proclamation under section 82 Cr.P.C., may be issued and if appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him/her, in accordance with law, under section 174-A I.P.C.
(iv) The appellant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him/her in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellant.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 26.7.2019 SK