Court No. - 44
Case :- CRIMINAL APPEAL No. - 3059 of 2018 Appellant :- Rizwan Respondent :- State Of U.P.
Counsel for Appellant :- Ganesh Kumar Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the appellant, learned AGA and perused the record.
By means of the present appeal the appellant is assailing the validity and veracity of the judgment and order dated 21.05.2018 passed by Additional Session Judge (F.T.C.) Ist, Basti in Session Trial No. 261 of 2015 by which the appellant Rizwan was convicted u/s 376-D for 20 years R.I. along with the fine of Rs. 20,000/- but acquitted under section 342 and 406 Cr.P.C.
Submission made by the counsel for the appellant that the victim is the informant, who through an application u/s 156 (3) Cr.P.C. has lodged the FIR on 11.07.2016 for the incident said to have been taken place on 27.04.2015. The allegation made in the FIR is that the appellant along with other persons barged into her house and committed gang rape with her in absence of her parents. During investigation in her statement recorded u/s 161 Cr.P.C., she has supported the prosecution case however, the charges amended and a de novo trial has commenced but all the witnesses of the prosecution have turned hostile. Not only this, the victim in her earlier examination-in-chief supported the prosecution case but when she was again put for her cross examination-in-chief after amending the charges on 02.05.2018, she has wriggled out from her earlier stand. It is further submitted that the medical report too has not supported the allegation of rape upon her. It has lastly been submitted that the appellant was on bail during the trial and he has not misused the liberty of bail, so the applicant should be enlarged on bail.
Per contra learned AGA opposed the prayer for bail and submitted that there is sufficient evidence against the appellant so he should not be entitled to be enlarged on bail.
After having heard the submissions made by learned counsel for the parties, I find that the appellant is entitled to be enlarged on bail.
Let the the appellant Rizwan, be released on bail in S.T. No. 261 of 2015, Case Crime No. 415 of 2015, under Section 376 (D) IPC, P.S. Harraiya, District Basti during the pendency of the appeal, on his each furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
Subject to the appellant depositing 50% of the fine within a period of one month and the remaining amount of fine shall remain stayed during pendency of the appeal.
On acceptance of bail bonds, the lower court record shall transmit photostat copies thereof to this Court for being kept on record of this appeal.
Let the paper book be prepared.
List this appeal for hearing in due course.
Order Date :- 29.11.2018 Nisha