Court No. - 52
Case :- CRIMINAL APPEAL No. - 3544 of 2018 Appellant :- Sonu Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Amarnath Tiwari,Ramendra Nath Tiwari Counsel for Respondent :- G.A.,Kamlesh Kumar Tiwari
Hon'ble Rajul Bhargava,J.
Heard Sri Amarnath Tiwari, learned counsel for the appellant, Sri Kamlesh Kumar Tiwari, learned counsel for the respondent No.2 and the learned A.G.A. for the State and perused the record.
This appeal has been filed against judgement and order dated 29.05.2018 passed by learned Additional Disctrict and Sessions Judge, Court No.02/Special Judge SC/ST Act, Kusinagar passed in Bail Application No. 741 of 2018 C.N.R. No. UPKU01-002268 of 2018 (Sonu Vs State of U.P.), arising out of Case Crime No. 0597/2017, under Sections 376, 504, 506 I.P.C., Section 3/4 of POCSO Act and Section 3(2)(V) of SC/ST Act, P.S.- Hata, District- Kusinagar, by which bail plea of appellant has been rejected.
Learned counsel for the appellant urged that the appellant has been falsely implicated in the present case by the first informant on account of enmity and the same is motivated one. It is argued that the F.I.R. was lodged on 17.11.2017 at 5.40 P.M. regarding the alleged incident of appellant raping his minor daughter on 14.11.2017 at 7 P.M. It is alleged that when the informant's daughter went to attend call of nature the appellant forcibly dragged her in a nearby canal and then raped her. On his daughter's hue and cry the informant, his wife and another villagers also reached there and then the appellant fled away and he was recognized in torch light. It is further stated that the first informant went to lodge the first information report at the police station, however, his complaint regarding the aforesaid incident was not scribed as per the true facts of the incident but by suppression of the correct facts the complaint was scribed. Based on it, learned counsel for the appellant states that in fact as the both parties had some altercation and fight had taken place between them as is corroborated by the report of police copy of which has been annexed as annexure 7 to the affidavit. However, the said report has not been brought on record by the prosecution. It indicates that no such incident as alleged in the belated F.I.R. had taken place. He next pointed out that purposely the medical examination of the victim was conducted on 20.11.2017 in which no visible marks of injury on external or internal parts of the body of the victim were noted. As per the medical report the victim is aged about 17 years. In any view, the prosecution version of dragging the victim in a canal by the appellant and then committed rape on her is not supported by medical evidence. Learned counsel for the appellant further submitted that learned court below has also failed to consider 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 A.G.A. as well as learned counsel for the informant have vehemently opposed the aforesaid submissions of learned counsel for the appellant and submitted that the victim is minor and as per medical report she is less than 17 years of age and has stated in para 8 of the counter affidavit that police of concerned police station had forcibly taken some application from the informant regarding quarrel between two parties in order to save the accused appellant. However, they could dispute that the F.I.R. Was lodged after three days of the incident and after two days the victim was medically examined in which no injury on her genital or external parts of her body has been noted.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 29.05.2018 passed by learned Additional Disctrict and Sessions Judge, Court No.02/Special Judge SC/ST Act, Kusinagar is set aside.
Let appellant-applicant- Sonu, be released on bail in aforesaid case on his 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 :- 24.8.2018 Vikas/-