Court No. - 50
Case :- CRIMINAL APPEAL No. - 5320 of 2018 Appellant :- Tuntun Yadav Respondent :- State Of U.P. And 2 Others Counsel for Appellant :- Kumar Dhananjay Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the appellant and learned A.G.A. and perused the record.
As per office report dated 4.10.2018 based on the letter of Chief Judicial Magistrate Ballia dated 1.10.2018, notices upon O.P. No.2 has been served in person and upon O.P. No.3 through her father.
This criminal appeal has been filed filed against the judgement and order dated 27.8.2018 passed by II-Addl. Sessions Judge/ Special Judge, S.C.S.T. Act. Bareilly in case crime no. 39 of 2018, under section 323,324 (B), 504 of I.P.C. and 3(2) (va) of SC/ST Act and under section 7/8 of POCSO Act. P.S. Dubhar, District Ballia.
Learned counsel for the appellant has submitted that the F.I.R. has been lodged by O.P. No.2, Raj Kumari stating therein that she is resident of village Shivpur Deyar, Nai Basti Byas, Dubhar, District Ballia. Her daughter is a student of High School in Kanya Vidyalay, Shivrampur, District Ballia and she regularly attends the school. It is further alleged that on way to school she was teased by the appellant and two other co-accused persons. However, this fact was never reported due to fear. On 16.8.2018 at about 7.00 p.m. when she was going to attend natural call with her friend, the co-accused Narayan Singh caught hold her daughter by her hand and tried to pull her. On raising alarm, Narayan Singh assaulted her and also hurled abuses. Hearing the alarm number of persons including the family members reached there and saw that Narayan Singh was present there hurling abuses and on being quizzed he started abusing them also by addressing them on their caste and at that very time the appellant, Tuntun Yadav and Ajit Kumar Yadav who were hidden nearby appeared on the scene and started assaulting them. She is a poor lady belonging to the Scheduled caste and her husband had gone out to earn their livelihood. On the basis of the said allegations, the F.I.R. was lodged against the appellant and two other co-accused persons.
Learned counsel for the appellant next submitted that during course of investigation, the statement of victim Khushbu has been recorded in which she has categorically stated that on 16.8.2018 she was returning back after easing then Narayan Singh met her on the way and pulled her by her hand. On raising alarm the appellant, Tuntun and co-accused Ajit reached there and her mother and family members also reached there and the said three persons had assaulted her and abused her.
Learned counsel for the appellant next submitted that the statement of the victim Khushbu was also recorded under section 164 Cr.P.C.. However, there is not whisper that she was addressed by her caste with a view to insult her by the appellant and only general role of assault and hurling abuses have been assigned to the appellant alongwith other accused persons and there is no injury caused to the victim.
Learned counsel for the appellant has further submitted that the appellant is in jail since 19.8.2018 and in case he is released on bail, he will not misuse the liberty of bail and he has no criminal history to his credit.
Learned A.G.A. has refuted the submissions of learned counsel for the appellant but could not dispute the fact that there is absolutely no allegation against the appellant regarding outraging the modesty of the victim or abusing her by caste.
Keeping in view of the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of learned counsel for the parties, I find that that the court below has acted wrongly in rejecting the bail application of applicant and the impugned order is liable to be set aside. The impugned order dated 27.8.2018 passed by II-Addl. Sessions Judge/Special Judge SC/ST Act. District Ballia in case crime no. 39 of 2018, under section 323,324 (D), 504 of I.P.C. and 3(2) (va) of SC/ST Act and under section 7/8 of POCSO Act. P.S. Dubhar, District Ballia. is hereby set- aside.
The appeal is accordingly allowed.
Let the applicant Tuntun Yadav be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following conditions :-
(i) The applicant shall not indulge in any criminal activity.
(ii) The applicant shall not tamper with the prosecution evidence.
(iii) The applicant shall not pressurize the prosecution witnesses.
(iv) The applicant shall regularly appear on the dates fixed by the trial court unless his personal attendance is exempted by the trial court.
In case of default of any of the conditions enumerated above, it will be open to the opposite parties to approach the Court for cancellation of bail.
Order Date :- 26.10.2018 R