Heard learned counsel for the appellant, learned Additional Government Advocate for the State, complainant's counsel, and perused the record.
This criminal appeal has been filed under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 to set aside order dated 29.9.2020 passed in Bail No.152 of 2020, arising out of case crime No.435 of 2020 under sections 376, 312, 504 I.P.C. and section 3(2)(V) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, P.S. Kotwali Gola, district Kheri.
As per admitted case of the prosecution, the victim was having physical and sexual relationship with the applicant for the last five years. Admittedly, as per statement of the prosecutrix, she was 22 years old. In her statement under section 161 CrPC, physical and sexual relationship between her and the applicant has been admitted. While giving statement under section 164 CrPC, for the first time, it was introduced that the appellant belongs to the Muslim community but there is no whisper regarding the same either in the first information report or in the statement under Section 161 CrPC.
In the medical examination conducted on 22.6.2020, no sign of use of force has been found. Supplementary medico-legal report of the victim also does not suggest any sign of use of force. The victim allegedly committed suicide on 12.7.2020 at her parental home in suspicious circumstances. The role of respondent No.2 and other family members is under suspicion in view of the various complaints filed by the victim against respondent No.2 and other family members, viz domestic violence etc. This shows that she was harassed by her own parents and family members.
An application under section 125 CrPC has also been filed by the prosecutrix against her own father. This shows that the father of the victim was harassing her and she was subjected to physical and mental harassment.
It is next contended that the victim was handed over to respondent No.2 on 28.6.2020 by the police in the present of a witness Arvind Verma with caution that respondent No.2 will not harass the victim in any manner. The first information report was lodged on 20.6.2020. The custody of the victim was handed over to respondent No.2 on 29.6.2020 with caution. The custody order is on record. She died on 12.7.2020 under suspicious circumstance.
Learned counsel for the appellant/applicant submits that the applicant is innocent and has been falsely implicated.
It is submitted on behalf of the appellant/applicant that the applicant has no criminal history.
The appellant is in jail since 7.7.2020.
It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. and complainant's counsel opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the appellant/applicant.
Considering the facts and circumstances of the case, without commenting upon merit of the case, I am of the view that the learned court below has failed to appreciate the material available on record.
In view of above, the order dated 29.9.2020(supra) passed by the court below is liable to be and is hereby set aside.
Accordingly, the appeal is allowed.
Let the appellant/applicant Mahendra Kumar Maurya, involved in Case Crime No. 435 of 2020 (supra) be released on bail on his furnishing a personal bond 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 will not tamper with the evidence during the trial.
(ii) The appellant will not pressurize/ intimidate the prosecution witness.
(iii) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
Order Date :- 7.4.2021 kkb/