Heard learned counsel for the applicant/appellant, learned A.G.A. for the State and perused the material available on record.
This appeal has been preferred under Section 14 (A) (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the order dated 09.12.2019 passed by the Additional Sessions Judge/Special Judge (S.C./S.T.) Act, Court No.2, District- Unnao. Learned Court below rejected the bail application No.2413/2019, Case Crime No.497/2019, under Sections 302, 366, 376 (D)/377 I.P.C. read with Section 3 (II) (V) S.C./S.T. Act, 1989, Police Station- Bangarmau, District- Unnao.
Learned counsel for appellant has submitted that the appellant is innocent and has falsely been implicated in the aforesaid crime. He further submitted that alleged occurrence as per prosecution version the deceased was missing from 21.9.2019 at about 4:00 p.m. but the F.I.R. was lodged on 22.9.2019 under Section 366 I.P.C. against the appellant. It is further submitted that dead body of daughter of first informant was recovered o 23.9.2019 at 10:30 a.m. and after preparation of the Panchnama autopsy of the deceased was conducted on 23.9.2019 and as per post mortem report the cause of death was ascertained due to anti mortem strangulation. Learned counsel further submitted that on perusal of the post mortem report, it reveals that no sign of sexual assault was found on the body of the deceased and as per opinion of the Doctor duration of death about two days back. It is also submitted that after arrest of the appellant false recovery of Aadhar Card of Zubair alias Kallu was shown by the arresting officer. It is also submitted that last seen of evidence of Smt. Guddo was recorded after one month of the incident of Smt. Guddo but prosecution failed to explain why Smt. Guddo kept silent about one month of the incident. It is also submitted that there is no motive assigned against the appellant to commit murder of the deceased. Although two slides of anal swab as well as two slides of vaginal swab was prepared by the Doctor conducting the post mortem for confirmation of spermatozoa and DNA but till date no such report was produced by the prosecution for confirmation of sexual assault upon the deceased. It is also submitted that this case was solely based on circumstantial evidence but the chain of evidence is not complete. So learned counsel submitted that no credible evidence available against the appellant which shows the involvement of appellant in this case. The appellant is in jail since 27.9.2019 and there is no previous criminal history against the appellant.. Learned counsel for the applicant has further submitted that if the applicant is released on bail, he would not misuse liberty of bail and is ready to co-operate in the trial.
Learned A.G.A. for the State vehemently opposed the prayer for bail and has submitted that offence is heinous in nature. Learned A.G.A. further submitted that there is sufficient motive against the appellant available on record as per statement of the Doctor that the rape was committed before murder of the deceased and further submitted that circumstantial evidence available against the appellant, so there is no illegality in the impugned order of rejection of bail, hence the applicant/appellant is not entitled for bail and the appeal/bail application is liable to be rejected.
After hearing the rival submissions of the parties, and perused the record, without expressing any opinion on merits, I find that it is a fit case for grant of bail of appellant/applicant.
Impugned order dated 09.12.2019 is hereby set aside.
The appeal is hereby allowed.
Let appellant- Zubair @ Kallu be enlarged on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall not tamper with the evidence of witnesses and shall not commit any offence.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 25.8.2021 sks