Court No. - 67
Case :- CRIMINAL APPEAL No. - 2267 of 2021 Appellant :- Shiv Naresh Respondent :- State of U.P. and Another Counsel for Appellant :- Anil Kumar Pandey Counsel for Respondent :- G.A.,Surendra Singh
Hon'ble Rahul Chaturvedi,J.
Heard Sri Mukesh Kumar Pandey, Advocate holding brief of Sri Anil Kumar Pandey, learned counsel for the appellant, Sri Sarendra Singh, learned counsel for the apposite party no. 2, Sri Satendra Nath Tiwari, Advocate assisted by Sri Faraz Kazmi, Advocate representing the State.
Office report indicates that notice has been served upon opposite party no. 2 and Sri Surendra Singh has put in appearance on behalf of the opposite party no. 2. Sri Surendra Singh submits that he does not want to file any counter affidavit and wants to argue the case and learned counsel the appellant too does not want to file any rejoinder affidavit in response to the counter affidavit filed by the State. With the agreement of both the parties, the Court is proposing to decide the appeal on merits.
By means of the instant appeal u/s 14 (A)(2) SC/ST Act, the appellant is challenging the authenticity and legality of the order dated 02.02.2021 whereby the learned Special Judge, SC/ST Act/ Additional Session Judge, Banda has rejected the bail application of the appellant in Crl. Misc. Bail Application No. 7 of 2021 (Shiv Naresh Vs. State of U.P.) arising out of Case Crime No. 178 of 2020, u/s 366, 376-D, 344, 506 IPC and section 3(2)5 of SC/ST Act, P.S. Bisanda, District- Banda.
Submission made by Sri Mukesh Kumar Pandey learned counsel for the appellant that the victim Ms. 'X' has lodged the FIR on 07.10.2020 for the incident said to have been taken place on 22.04.2020, u/s 376-D, 344, 506 IPC and section 3(2) (V) of SC/ST Act against the appellant, namely, Shiv Naresh, Chotu and Sanjay with the allegation that the victim belongs to the Scheduled Caste Community and on 22.04.2020 around 4 in the morning, she went to attain the call of nature where the named accused persons stuffed her mouth and make her unconscious and taken her at four wheeler to Kanpur. Thereafter, when she regained consciousness, she saw that the appellant was driving the vehicle whereas remaining accused persons were flanked her with illegal fire arm and threatening her. While getting out from the vehicle, she has seen the vehicle which is Bolero white colored having registration no. U.P.90R.5359 and thereafter, they have taken her in a room where they have ravished her one by one and kept her perforce for three good months. Thereafter, they have taken her to Ganga Nagar, Banda where Chotu and Sanjay has already taken a room on rent where again they have committed gang rape with her. They have not permitting her to come out from the room. It is further contended that the police has nabbed Sanjay then Chotu and Shiv Naresh have extended threat to her life and taken her to police station and due to fear, she has not given any statement nor have lodged any FIR. It is only after reaching to the home, she has lodged the FIR.
On this premises, it was argued by Sri Mukesh Kumar Pandey, learned counsel for the appellant that the FIR was lodged by the victim after an inordinate delay of five months and 15 days and therefore, the allegations made in the FIR may be taken with the pinch of sault. After lodging the FIR, she was referred to women hospital, Banda for her medical examination of sexual violence on 08.10.2020 and as per the medical report, there is no external injury over her person, her hymen was ruptured and healed. She has given her statement to the doctor retreating the allegation of the FIR and from the medico-legal report it is clear that there is a penetration of the human organ in her private part. The doctor is not in a position to give any concrete opinion about the sexual violence but in the statements of the victim recorded u/s 161 and 164 Cr.P.C., she has given an elaborate and vivid description of the atrocities committed by the appellant and co-accused persons. There is minor discrepancies but broadly speaking that she was maintained consistent story of the prosecution case in the FIR, in her statements recorded u/s 161 and 164 Cr.P.C. In her statement recorded u/s 164 Cr.P.C. she has stated that for the full three months, all of them after over powering and extending threat, keep on committing rape with her and they were not permitting her to go out side the room. The room in question was too in the secluded place even she has not able to contact with her would be husband Neeraj at Unchaahaar but he too has not made any serious attempt to recover his fiance. The police personnel too has pressurize her to wriggled out from her stand and on account of these atrocities when it became public her marriage was broken. Learned counsel for the appellant has further submitted that the police has affect the arrest of the appellant on 11/12.10.2020 though in paragraph 13 of the affidavit it has been mentioned that police has arrested the accused Sanjay then accused Shiv Naresh and Chotu came to the police station along with the victim though in parcha no. 2 of the case diary the accused Sanjay and Shiv Naresh were arrested together on 11.10.2020 and thus, her statements u/s 164 Cr.P.C. is wrong in which she has stated that on 07.10.2020, Sanjay was arrested and thereafter, they have taken her to the police station. In fact, Sanjay was arrested on 11.10.2020 and therefore, the story mentioned in the statement of the victim recorded u/s 164 Cr.P.C. do not generate confidence.
I have heard the learned counsel for the appellant at length, learned counsel for the opposite party no. 2 and learned A.G.A. and after going through the story narrated in the FIR, in the statements of the victim recorded u/s 161 and 164 Cr.P.C., it is clear that all the three accused persons were engaged in sexual access with the poor girl who are virtually and physically butchered and physiologically tarnished just to quench their thirst. The learned counsel for the appellant has unable to give any satisfactorily reply as to why these three accused persons were named by the prosecutrix for such a heinous offence. She remain in the company of the appellant for a considerable period of more than 4-5 months whereby these three persons against her wish and desire used her for their enjoyment.
Under the circumstances, they deserved no sympathy from the Court and the Court do not finds any illegality or perversity in the order dated 02.02.2021, therefore, the present criminal appeal is devoid of merit and is accordingly, REJECTED.
Order Date :- 24.9.2021 Nisha Digitally signed by RAHUL CHATURVEDI Date: 2021.10.02 14:31:27 IST Reason: Document Owner Location: High Court of Judicature at Allahabad