Heard learned counsel for the appellant and learned AGA for the State and perused the record.
This criminal appeal under Section 374 (2) of Cr.P.C. against the judgment and order dated 18.02.2019 passed by Learned Special Judge, POCSO Act/Additional Session Judge Court No. 8 District Unnao, by which he has convicted the appellant under Section 366 of I.P.C. by sentencing him to undergo seven years rigorous imprisonment and a fine of Rs. 5,000/- and under Section 376 (D) of I.P.C by sentencing him to undergo 20 years imprisonment and fine of Rs.20,000/-. In the event of Non payment, the applicant shall undergo an additional imprisonment of 1 year respectively.
Learned counsel for the appellant while pressing the prayer of bail submits that, the appellants have been wrongly convicted by the Court below by wrongly appreciating the evidence available on record, while prosecution miserably failed to prove its case beyond reasonable doubt.
It has been contended on behalf of the appellant, the occurrence took place on 30.03.2015, whereas the FIR has been lodged on 01.03.2015 vide Case Crime No. 104 of 2015, under Sections 363, 366 IPC. The prosecutrix gave her statement under Section 161 Cr.P.C to the Investigating Officer in which she has not alleged the offence of rape against the accused applicant. It is next contended that the prosecutrix has repeatedly changed her statement about the place of occurrence. At one point of time she has stated that the rape was committed in an abandoned area of jungle and later she changed her statement that the rape was committed inside the van itself. It is contended by learned counsel for the applicant that after the statement under Section 164 Cr.P.C was recorded, she has again given statement under Section 161 Cr.P.C confirming her statement under Section 164 Cr.P.C.
It is contended by the learned counsel for the appellant that the first statement under Section 161 Cr.PC was a written statement given by the prosecutrix in the hospital and during the course of cross examination, this first statement under Section 161 Cr.P.C was used by the accused applicant to contradict her.
It is further contended in the medical report the prosecutrix's age has been opined 17 years by the doctor but deliberately the complainant has mentioned prosecutrix's age 13 years only, the trial court has not considered this relevant fact and while convicting the accused-applicant. In the medical examination, no injury has been found on the private parts of the prosecutrix.
Learned counsel for the appellant submitted that the victim has not supported the prosecution story in her statement under Section 164 Cr.P.C. However, while giving statement before the Court the victim has changed her statement and made improvement which falsifies the prosecution story and the trial Court without appreciating this fact has convicted the appellant.
It is further submitted that, during the course of trial, the appellant was on bail and there is no instance of misusing the liberty so granted by this Court.
It is further submitted that there is no likelihood that the appellant after release on bail may flee from the process of law or will misuse the liberty of bail, so granted by this Court. There is no previous criminal history of the appellants.
Learned A.G.A., however, opposes the prayer for bail of the appellant, on the ground that, the appellant has committed a serious and heinous offence and has been rightly convicted by the Court below, and the appellant is not entitled for bail. However, he could not confront the factual submissions made by learned counsel for the appellants.
In view of the facts and circumstances of the case and without commenting on the merits of the case and considering the fact that during trial, the appellant was on bail and he has not misused the liberty of bail and there is no likelihood that the present appeal may be listed for hearing in the near future, this Court is of the view that the case of bail is made out.
Let the appellant Virendra Lodh involved in aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) Half of the fine imposed by the trial Court shall be deposited within 30 days from the actual release of the appellant, if the same has not already been deposited.
(ii) The appellant shall cooperate in the disposal of appeal without seeking unnecessary adjournment.
(iii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 28.8.2019 shravan