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2021 DIGILAW 1523 (ALL)

Uaday Pal v. State of U. P.

2021-12-09

MOHD.ASLAM

body2021
JUDGMENT : Mohd. Aslam, J. Order on Criminal Misc. Bail Application No. 2 of 2021 1. Heard Sri Santosh Kumar Shukla, learned counsel for the appellant and Sri Rajendra Kumar Singh, learned A.G.A. for the State-respondent. 2. The instant application under Section 389(1) Cr.P.C. is moved on behalf of the appellant-Uday Pal seeking suspension of sentence and releasing him on bail during pendency of appeal which is preferred against the impugned judgement of conviction and order of sentence dated 05.04.2021 passed by Additional Session Judge/Fast Track Court No.1, Firozabad in Session Trial No.700544 of 2011 State of UP vs. Uday Pal' (arising out of Case Crime No. 95 of 2008, under Sections 376, 506 I.P.C., Police Station-Fariha, District-Firozabad), whereby the accused-appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.30,000/-under Section 376 I.P.C. and to undergo rigorous imprisonment for two years and fine of Rs.1,000/-under Section 506 I.P.C., with stipulation clause of fine. All the sentences were directed to run concurrently. It is further directed that 80% of the fine amount shall be payable to the victim. 3. In brief, prosecution story is that PW1 Thakur Das has lodged the first information report on 21.08.2008 at 17:35 P.M. at Police Station Fariha, District Firozabad alleging therein that on the day of incident his sister/victim X had gone to agricultural land for taking fodder where accused-appellant had outraged her modesty by holding her hand and taking her inside the agricultural land. On the alarm raised by his sister, villagers Tursan Pal and Bhuvnesh arrived there and saved dignity of his sister. Investigation of the case was undertaken by HCP Natthu khan who after investigation submitted the charge-sheet against the accused-appellant. During investigation, statement of the victim under Section 161 Cr.P.C. was recorded on 29.08.2008. Statement of the victim under Section 164 Cr.P.C. was recorded on 02.09.2008, wherein, she has stated that accused-appellant Uday Pal had dragged her into agricultural field of Bajra where he committed rape upon her forcibly and threatened her if she discloses about the incident to anybody, he will kill her. She has further stated that on this count she did not tell the entire incident to her father. Thereafter, her father moved another application on 27.08.2008 at Police Station Fariha narrating the entire incident. The victim was also subjected to medical examination in this regard. 4. She has further stated that on this count she did not tell the entire incident to her father. Thereafter, her father moved another application on 27.08.2008 at Police Station Fariha narrating the entire incident. The victim was also subjected to medical examination in this regard. 4. In order to prove its case, prosecution has examined informant Thakur Das, brother of the victim, as PW1, victim X as PW4 and Netra Pal, father of the victim, as PW3 as witnesses of the facts. Prosecution has also examined Dr. Parveen Jahan as PW2 to prove injury report, Dr. Rakesh Kumar as PW5 to prove medical age, Investigating Officer Natthu Khan as PW6 to prove steps taken in investigation, site-plan and filing of charge-sheet under Sections 376 and 506 I.P.C. against the accused-appellant and Constable Jagdish Prasad as PW7 to prove chick report and entry of GD registering the case. 5. Learner lower court has recorded the statement of accused-appellant under Section 313 Cr.P.C. wherein he has denied the occurrence and has stated that he has been falsely implicated in this case. Learned lower court after hearing the arguments of learned Additional Public Prosecutor and learned counsel for the accused-appellant has convicted the appellant and sentenced him as mentioned above. 6. It has been submitted by learned counsel for the accused-appellant that victim X was medically examined on 27.08.2008 and as per medical report no mark of injury was found on her body and the doctor has opined that no definite opinion regarding rape can be given. It is further submitted that supplementary report of the victim was prepared wherein her age was found to be about 16–17 years. On the perusal of statements of PW1 Thakur Das and PW4 and PW5, the charges for offence punishable under Section 376 and 506 I.P.C. is not established beyond doubt. He has further submitted that appellant is quite innocent and he has been falsely roped in this case due to enmity and party-bandi. It is further submitted that initially no averment regarding rape was made in the first information report, except that the victim has told the entire incident to his father. There is inordinate delay in lodging the first information report which has not been explained by the prosecution. The appellant was on bail during trial and he has not misused its liberty. There is inordinate delay in lodging the first information report which has not been explained by the prosecution. The appellant was on bail during trial and he has not misused its liberty. There is no likelihood of early hearing of this appeal in near future. Therefore, the appellant, having no criminal antecedents to his credit, deserves to be enlarged on bail during pendency of the appeal. 7. Per contra, Sri Rajender Kumar Singh, learned A.G.A. has opposed the prayer for bail and submitted that the appellant is named in the first information report. He has further contented that accused-appellant had threatened the victim to kill her after incident, therefore, due to fear she could not narrate the entire incident of rape to her father. It is further contended that medical examination of the victim was done on 27.8.2008 i.e. after of six days of the occurrence, therefore, external injury was not found on the body of the victim and due to this reason spermatozoa was also not found in the slide of vaginal smear. It is next contended that hymen was found old torn healed up which corroborates the prosecution version, in spite of the opinion of doctor that no definite opinion regarding rape can be given. 8. I have gone through the record. In the first information report it is alleged that appellant has tried to outrage the modesty of victim and has done obscene act. On the alarm raised by victim, witnesses Tursan Pal and Bhuvnesh came there and saved dignity of informant's sister. The first information report of the incident was lodged on 22.08.2008. In the statement under Section 161 Cr.P.C. victim has corroborated the facts mentioned in the first information report. Later on after about seven days, father of the victim moved an application (Ex-Ka-4) on 27.08.2008 wherein victim has told that accused-appellant has also committed rape upon her after getting her necked. Initially, the first information report was lodged under Section 294 I.P.C. and Section 376 I.P.C. was added later on. Thereafter, the victim was subjected to medical examination on 27.08.2008 after 2 P.M. wherein no internal or external injury was found on her person. Hymen was found old torn healed and vagina admits two finger. No spermatozoa was detected in the pathological examination. In the medical report, age of the victim is found to be 16-17 years. Thereafter, the victim was subjected to medical examination on 27.08.2008 after 2 P.M. wherein no internal or external injury was found on her person. Hymen was found old torn healed and vagina admits two finger. No spermatozoa was detected in the pathological examination. In the medical report, age of the victim is found to be 16-17 years. In the statement under Section 164 Cr.P.C. recorded on 02.09.2008, the victim has stated that rape was committed upon her and due to shame she could not tell his father regarding fact of rape. In this case, the witnesses named in the first information report, who are alleged to have saved the dignity of informant's sister as mentioned in the first information report, have not been examined by the prosecution. 9. Having heard learned counsel for the appellant and learned A.G.A. for the State and keeping in view the overall facts and circumstances of the case, I find it to be a fit case for grant of bail to the appellant during pendency of the appeal. 10. The bail application is allowed. 11. Let the accused-appellant-Uaday Pal be released on bail in Session Trial No.700544 of 2011 State of UP vs. Uday Pal' (arising out of Case Crime No. 95 of 2008, under Sections 376, 506 I.P.C., Police Station-Fariha, District-Firozabad), during pendency of the appeal on his furnishing of personal bond and two sureties each of the like amount to the satisfaction of the Chief Judicial Magistrate concerned. 12. Keeping in view of the facts and circumstances of the case, I do not find it to be a fit case to stay the realization of fine amount awarded by the lower court. During pendency of the appeal, the sentence of imprisonment awarded by lower court shall remain suspended. 13. As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by court concerned to be kept on the record of this appeal. 14. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official. 15. 14. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official. 15. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order on Criminal Appeal 16. List this case on 07.03.2022 for final hearing.