Court No. - 64
Case :- CRIMINAL APPEAL No. - 4445 of 2021 Appellant :- Rishu Kumar @ Kumar Rishu @ Rishabh Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Praveen Kumar Singh,Aushim Luthra,Sr. Advocate Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Supplementary affidavit has been filed today. Taken on record.
2. Despite service of notice on respondent no. 2, none has appeared on his behalf to oppose the appeal. Accordingly, the appeal is being proceeded on merits.
3. Heard Sri Manish Tiwary, Senior Advocate, assisted by Sri Aushim Luthra, learned counsel for the appellant and Sri Ankit Srivastava, learned AGA for the State and perused the material placed on record.
4. This criminal appeal under Section 14-A(2) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been preferred by the appellant with the prayer to set aside the order dated 22.9.2021, passed by Special Judge S.C./S.T. Act, Varanasi, in Case Crime No. 1206 of 2018, under Sections - 302, 307, 34, 120B, 420, 411 I.P.C. and Section 7 Criminal Law Amendment Act and Section 3(2)(V) S.C./S.T. Act, Police Station - Cantt, District - Varanasi, whereby bail application of the appellant has been rejected.
4. At the outset, learned counsel for the appellant submits, against the FIR lodged on 31.10.2018, the appellant is in confinement since 16.11.2018; the appellant claims to have cooperated in the investigation; the appellant has no criminal history prior to the occurrence; charge-sheet has already been submitted yet, trial has not commenced. Therefore, there is no hope of early conclusion of the trial; on prima facie basis, though the applicant was named in the FIR and certain statements have emerged during the investigation which resulted in the rejection of the first bail application filed by the applicant as was also confirmed by this Court in Criminal Appeal No. 1678/2020 vide order dated 16.12.2020. At the trial, three crucial witnesses namely P.W.1 and P.W.2 have failed to identify the appellant as the assailant and P.W.3 has turned hostile. Thus, it has been submitted, at present, there is no evidence surviving to establish the presence or involvement of the appellant in the occurrence. In such circumstances, co- accused Alok Upadhyay, whose firearm has recovered from the spot, was granted bail by this Court in Criminal Appeal No. 2081 of 2020 vide order dated 19.3.2021. Also, it has been submitted, the allegations of violation of SC/ST Act are general and made to lend colour to the story.
5. Learned A.G.A. has vehemently opposed the prayer for bail of the appellant.
6. Having heard learned counsel for the parties and having perused the record, at present, the order passed by the learned court below rejecting the bail application filed by the appellant/s, cannot be sustained.
7. Without drawing any inference as to facts, in view of the above noted facts and submissions and having regard to the status of the evidence, as has been shown to exist on record, let the appellant/s be enlarged on bail at this stage.
8. Accordingly, this appeal is allowed and the impugned order dated 22.9.2021 rejecting the bail of the appellant is set aside.
9. Let the accused-appellant, namely, Rishu Kumar @ Kumar Rishu @ Rishabh Singh, involved in the aforesaid crime be released on bail on his furnishing personal bonds and two sureties each of the like amount to the satisfaction of Court concerned subject to the condition that appellant shall cooperate in the trial and will not jump the bail.
Order Date :- 16.12.2021 Prakhar