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2019 DIGILAW 2365 (ALL)

Sajid v. State of U. P.

2019-10-18

RAJIV GUPTA

body2019
JUDGMENT : Rajiv Gupta, J. 1. Learned A.G.A. has filed counter affidavit on behalf of the State today in Court, which is taken on record. 2. Heard learned counsel for the appellant, learned AGA for the State as well as perused the record. 3. In Para 3 of the counter affidavit filed by Indra Prakash, Circle Officer, City, District Kasganj, it has been stated that the information with regard to filing of the present Criminal Appeal has been given to the complainant of the case and a photo copy of the aforesaid notice has been annexed as Annexure No. CA-1 to the counter affidavit, however, despite service of notice, none has appeared on her behalf. 4. This criminal appeal under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed by the appellant challenging the order dated 15.07.2019 passed by Special Judge, SC/ST Act, Kasganj in Bail Application No. 846 of 2019, Sajid vs. State of U.P. arising out of Case Crime No. 98 of 2019, under Sections 366, 376, 506 I.P.C. and Section 3(2)(5) of SC/ST Act, P.S. Ganjdundwara, District-Kasganj, seeking his bail in the aforesaid sections. 5. Learned counsel for the appellant has submitted that the appellant is wholly innocent and has been falsely implicated in the present case due to ulterior motive. 6. Learned counsel for the appellant has next submitted that as per the high school certificate, the date of birth of the victim is 10.07.1998 and as such, she is a major girl. 7. Learned counsel for the appellant has next drawn the attention of the Court to the statement of the victim recorded under Section 164 Cr.P.C. in which, she has stated that the appellant Sajid is the friend of his brother and had taken her on vehicle to Kasganj and thereafter, they boarded a bus and reached Agra and from there, the appellant had taken her to Jaipur and kept her in a factory, where he committed rape upon her and thereafter, returned back to Agra and he was arrested at bus stand of Jaipur. 8. Learned counsel for the appellant has next submitted that the victim had travelled from one place to another along with the appellant but has not raised any alarm and from her statement, it is evident that she is a consenting party. 9. 8. Learned counsel for the appellant has next submitted that the victim had travelled from one place to another along with the appellant but has not raised any alarm and from her statement, it is evident that she is a consenting party. 9. Learned counsel for the appellant has next submitted that in the statement of victim recorded under Section 161 Cr.P.C. there is no allegation that the appellant had committed rape upon her. 10. In view of the inconsistent statement of the victim recorded under Sections 161 and 164 Cr.P.C. prima-facie a case for bail is made out. Learned counsel for the appellant has further submitted that the appellant is in jail since 22.04.2019 and he has no criminal history to his credit. 11. Per contra, learned AGA as well as learned counsel for the first informant have opposed the prayer for bail but could not dispute the aforesaid facts and the fact that appellant is in jail since 22.04.2019 and he has no criminal history to his credit and the victim appears to be a consenting party. 12. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, the appeal has substance. Accordingly, the criminal appeal is allowed. 13. The impugned order dated 15.07.2019 passed by Special Judge, SC/ST Act, Kasganj, is set-aside and the bail application of appellant stands allowed. 14. Accordingly, the criminal appeal is allowed. 13. The impugned order dated 15.07.2019 passed by Special Judge, SC/ST Act, Kasganj, is set-aside and the bail application of appellant stands allowed. 14. Let the appellant Sajid be released on bail in Case Crime No. 98 of 2019, under Sections 366, 376, 506 I.P.C. and Section 3(2) and 3(2)(5) of SC/ST Act, P.S. Ganjdundwara, District-Kasganj, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to following conditions:- (i) The 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 appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever. (iii) The appellant will not indulge in any unlawful activities. 15. 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 appellant to prison.