.Court No. - 45
Case :- CRIMINAL APPEAL No. - 5596 of 2017 Appellant :- Sagar Respondent :- State Of U.P.
Counsel for Appellant :- Ganesh Shanker Srivastava,Deepak Kumar Srivastava,Ram Prasad Yadav Counsel for Respondent :- G.A.
(In Re: Crl. Misc. Bail Application No. 319814 of 2017 Hon'ble Shashi Kant Gupta,J. Hon'ble Ajit Kumar,J.
Counter affidavit filed today on behalf of the State is taken on record.
By means of present Crl. Misc. Bail Application in Criminal A ppeal no. 5596 of2017, the applicant/appellant is seeking bail in connection with Sessions Trial No. 80 of 2013, wherein he has been held guilty of an offence under Section 498, 506 and 376 of IPC and also under Section 3(2)(5) The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 and sentenced him for life.
The prosecution case is that prosecutrix was living alone with her children within the area of Charti police station district Basti whereas her husband was residing in Udaypur, Rajasthan in connection with employment. The prosecutrix while not keeping good health would often visit Faizabad for treatment and there her parents were also residing. It is there while often visiting the market, there developed good acquaintance between the prosecutrix and the brother of the convicted accused. It is on 10th January, 2012 while prosecutrix had gone to market in connection with purchase of medicine and wanted to board a tempo that Manhoar met her and assuring her of providing medicine took her to the residence of his relative in Faizabad where his brother Sagar also met and they administered tea to her mixed with some toxic substance and it is under the influence of intoxication that she was taken to his village situate in Maharashtra via Lucknow and there parents of Manohar and Sagar and one Deepak conspired her to submit to prostitution and in that regard they also harassed her. She was not able to understand marathi and when she resisted, then they took her to Pune and they detained her in room and applicant Sagar developed physical relation forcefully against her will and thus committed rape upon her. Thereafter, she was taken to Satara where she remained for sometime and there she got signed certain documents per force and there Manohar and Sagar used to talk with each other on mobile and she happened to overhear their conversation and thus she came to know their real intention for detaining her . Manohar threatened her that she would not be freed until she was spoiled by his brother. The prosecutrix was helpless and continued to bear torture committed upon her and continued to compromise with the situation though regularly she was crying for children and family. Thereafter, prosecutrix somehow assured them that she would continue to live with them . Believing her, Sagar arrived with her at Cantonment on 26.09.2012 and there she was kept in a rented house and he continuously threatened her and committed rape upon her. Thus prosecutrix complained that with the help of his brother and his accomplices, accused Sagar, abducted her and kept her in custody had beaten up her also and committed rape, resultantly she became pregnant. On coming to know all this, her parents, somehow managed to get her freed from the clutches of the accused persons and took her back to home on 28.09.2012 and there at home she was even threatened by her father to keep shut her mouth and get the pregnancy aborted .
The prosecutrix was also medically examined by the medical officer, in which no sign of injury was found on her body, inasmuch as, the medical officer did not express any definite opinion of rape having committed upon her. However, she was reported to be pregnant with live fetus of 14 weeks.
We have heard Sri Ganesh Shanker Srivastava, learned counsel for the applicant/appellant, Sri Ram Prasad yadav, learned counsel for the complainant, Sri Ajit Ray, learned Additional Government Advocate for the State and have perused the record.
The arguments advanced by learned counsel for the applicant is that inspite of the fact that prosecutrix was major and had spent almost about 9 months with him, she neither had ever raised any alarm nor, even resisted. There is no evidence on record to the effect that any missing complaint was ever lodged in between 10th January, 2012 and 28.09.2012 when the prosecutrix was allegedly missing. Further argument is that husband who is residing in Udaipur was also not produced in the witness box so as to establish the fact that prosecutrix was really abducted by the accused appellant and was kept in illegal captivity for 9 months against her wishes. It is argued that in normal course of human behaviour if husband is not living with his wife and is living in other state in connection with employment would question as to how she became pregnant by another person and must have taken appropriate criminal proceedings but in this case nothing has been done by the husband.
The argument is also advanced to the effect that medical report does not support her allegation of physical assault as prosecutrix had stated under section 164 Cr.P.C. before the court. Her allegations that she was subjected to physical torture and was wrongfully kept in confinement and physical relations were also made by the accused per force against her will thereby committing rape upon her, do not find support from the medical evidence.
The counsel for the applicant contends that circumstances show that as he was unmarried at the time when incident took place, the prosecutrix herself developed relations with him and remained with him for months together.
Per contra, learned AGA has opposed the bail application.
Considering the aforesaid submissions of learned counsel for the parties, and having perused the record but without expressing any opinion on the merits of the appeal at this stage, we are of the view that the applicant is entitled for bail.
Let the applicant Sagar involved in aforesaid case be released on bail on his executing a personal bond and furnishing two sureties each of the like amount to the satisfaction of the court concerned.
It is made clear that Identity status and residence proof of the applicant and sureties be strictly verified by the court concerned before the bonds are accepted.
Order Date :- 28.3.2018 Sanjeev