Court No. - 74
Case :- CRIMINAL APPEAL No. - 606 of 2021 Appellant :- Sonu Saini Respondent :- State Of U.P. And Another Counsel for Appellant :- Sayyed Kashif Abbas Rizvi Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant and learned AGA for the State and perused the record.
Learned A.G.A. has filed counter affidavit, which is taken on record.
Notice was issued to respondent no.2 which has been served personally but none has appeared for the respondent no.2.
This appeal has been filed by appellant Sonu Saini against the impugned order dated 21.01.2021 passed by learned Special Judge, SC/ST (P.A.) Act/Additional Sessions Judge, Moradabad passed in Bail Application No. 189 of 2021(Sonu Saini vs. State of U.P.), arising out of Case Crime No. 1360 of 2020, under Sections 328, 376, 506 I.P.C. and Sections 3(2)(v), 3(2)(va) of SC/ST (P.A.) Act, P.S. Majhola, District Moradabad, by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
The submission of learned counsel for the appellant is that the FIR has been lodged by respondent no.2 with the allegation that she and her family members was living in the house of appellant on rent. The appellant promises her to marry and may forcibly relationship and committed rape several times by regularly promising that he will marry with her. On 14.11.2020 he came to her house and administered some intoxicated in the cold-drink and committed rape on her. Thereafter, on 21.11.2020 she came to know that he is marrying someone else and when she opposed he threatened with dire consequences and abusing her using castiest words. Further submission is that the FIR itself discloses five years prolonged relationship which was totally consensual as it is not possible that such a long relationship will continue forcibly. It has been further submitted that during five years prolonged relationship, she made no complaint nor raised any grievance. The learned Special Judge did not consider this aspect and influenced by the consideration that the victim belongs to Scheduled Caste community rejected the bail application of the appellant. The impugned order is illegal and suffers from infirmity and, therefore, is liable to be set aside. Further submission is that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA has vehemently opposed the prayer and submitted that considering all the material on record and taking into consideration statement of the victim under Section 164 Cr.P.C., the learned Special Judge rejected the bail application and there is no illegality in the impugned order and, therefore, the appeal is liable to be dismissed.
Considered the submission of both sides. From the FIR, it is clear that the relationship started almost 4-5 years before when the victim and her family started living in the house of appellant as a tenant. The allegation is that the appellant gave false promise of marriage and developed relationship with her and several times committed rape on her. On 14.11.2020 he dragged her inside the house, administered intoxicant in the cold-drink and when she got fainted he committed rape on her. Similar kind of statement has been given by her. In her statement recorded under Sections 161 and 164 Cr.P.C., this appears to be agreed between the parties that a relationship continued between the two and the allegation is that it so happened because the appellant made false promise of marriage. It appears from the FIR itself that when the victim came to know that the appellant is going to marry with someone else, this FIR was lodged. During the five years, no grievance has been raised by her. As per FIR, she is aged about 24 years and she is a girl of mature age. It appears that the learned Special Judge has been influenced by the FIR version of the last date when it is said that the rape was committed on the informant. In the statement under Sections 161 and 164 Cr.P.C., it has been stated by the informant that the appellant continued sexually abusing her and committing rape with her by making false promise of marriage and this fact has also ignored by the learned special Judge. Clearly it was a relationship of five years and such a prolonged relationship cannot survive without the consent of the victim, I find apparentl illegality in the impugned order and the same is liable to be set aside.
In the result, appeal is allowed. Impugned order dated 21.01.2021 passed by learned Special Judge, SC/ST (P.A.) Act/Additional Session Judge, Moradabad, is set aside.
Let appellant-applicant Sonu Saini be released on bail in Bail Application No. 189 of 2021(Sonu Saini vs. State of U.P.), arising out of Case Crime No. 1360 of 2020, under Sections 328, 376, 506 I.P.C. and Sections 3(2)(v), 3(2)(va) of SC/ST (P.A.) Act, P.S. Majhola, District Moradabad on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 27.7.2021 Mini