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2023 DIGILAW 1731 (ALL)

Bechan Prasad v. State of U. P.

2023-07-19

MAYANK KUMAR JAIN

body2023
JUDGMENT : Mayank Kumar Jain, J. Heard learned counsel for the appellant, learned Additional Government Advocate for the State of U.P. and perused the record. 2. This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellants with the prayer to set aside the bail rejection order dated 24.5.2023 passed by learned Special Judge (SC/ST Act), Siddharth Nagar in Bail Application No. 860 of 2023, arising out of Case Crime No. 132 of 2022, under Sections 376 IPC and Section 3(2)(V) of SC/ST Act, Police Station Bansi, District Siddharth Nagar. 3. As per the FIR, the case of prosecution is that the victim went to the shop of appellant, the victim is an illiterate lady, the appellant administered sleeping pills to the victim and committed rape with her, when she became conscious, she came to about about this incident. She is having pregnancy of 8-9 months, which is the result of rape committed by the appellant. The victim continued to go to the appellant's shop but he was not available at the shop. The victim is very poor lady and having no source of income. 4. It is submitted that the trial Court while passing the impugned order did not appreciate the material available on record in proper perspective. The victim has lodged the First Information Report just to grab the money. She is habitual of lodging false reports against the innocent peoples and after taking money she enters into compromise. The age of the victim is 25 years and no external or internal injury was observed during her medical examination. The appellant filed Criminal Misc. Writ Petition No. 7787 of 2022, by which the arrest of the appellant was stayed. Witnesses Bhagirathi, Mukhlal, Ram Autar, Sant Ram and Gugnoo, had submitted their affidavits with the contents that the prosecutrix has performed her fourth marriage and her first husband died and earlier two other husbands deserted her due to her character. These affidavits were not verified by the Investigating Officer. It is also submitted that a compromise has taken place between the victim and the appellant on 23.4.2022 in which she stated that she did not want to take any action on the basis of the First Information Report. These affidavits were not verified by the Investigating Officer. It is also submitted that a compromise has taken place between the victim and the appellant on 23.4.2022 in which she stated that she did not want to take any action on the basis of the First Information Report. It is also submitted that the attendance register of the appellant has also been filed which indicates that the appellant was on duty at the time of incident. There is no eye-witness of such incident. Charge-sheet has been filed against the appellant. Notice has been issued to the appellant. The appellant is a pharmacist in Rajkiya Ayurvedic Chikitsalaya, Daulatpur, Bahraich/Shravasti, which is almost 200 kilometer from Siddharth Nagar, therefore, he has filed Anticipatory Bail application before the trial Court which was wrongly rejected. In the First Information Report no allegation with regard to commission of offence under Section 3(2)(5) of SC/ST Act were mentioned. In the FIR no date and time of the offence was also mentioned. There is nine months delay in lodging of the FIR, which has not been explained. 5. Per contra, learned A.G.A. opposed the prayer for bail and submitted that the victim in her statements recorded under Sections 161 and 164 Cr.P.C. has corroborated the version of the FIR but could not dispute the fact that some persons have given their affidavits against the prosecutrix and they are not verified by the Investigating Officer despite the specific order passed by this Court and the prosecutrix earlier had entered into compromise in which she has stated that she does not want to proceed further in pursuance of the FIR. 6. Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, this Court is of the view that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed. 7. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside. 8. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed. 7. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside. 8. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till conclusion of the trial on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions : i. The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence ii. The appellant shall not pressurize/intimidate the prosecution witness. iii. The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. iv. The appellant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. concerned. 9. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the appellant in accordance with law.