Allahabad High Court
Aman Jaiswal vs State Of U.P. Thru. Prin. Secy. Home ... on 10 October, 2023
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:65816 Court No. - 15 Case :- CRIMINAL APPEAL No. - 2874 of 2022 Appellant :- Aman Jaiswal Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And Another Counsel for Appellant :- Gauri Suwan Pandey,Anita,Kaustubh Singh Counsel for Respondent :- G.A.,Arshad Hafeez Khan,Dinesh Kr. Sharma Hon'ble Shamim Ahmed,J.
1. Heard Sri K.K.Sharma, learned counsel for the appellant as well as Sri Dinesh Kumar Sharma, the learned A.G.A. for the opposite party No.2 and Sri Ashok Kumar Srivastava, learned A.G.A. for the State-opposite party No. 1 and perused the entire record.
2. Learned counsel for the opposite party No.2 submits that he has tried to contact several times to her client, but she is not turning up to file the counter affidavit. He further submits that he will argue the case in absence of the counter affidavit.
3. Learned A.G.A. has already filed counter affidavit.
4. The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 05.11.2022 passed by the Court of Special Judge SC/ST Act, Barabanki in Bail Application No. 3356 of 2022: Amam Jaiswal Vs. State of U.P.), arising out of Case Crime No.307/2022, under Sections 376D, 504, 506 I.P.C. and Section 3 (1) (d), 3 (1) dha), 3(2) (va), 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kursi, District Barabanki, whereby the bail application of the appellant has been rejected.
5. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to enmity and village party bandi. No such incident took place as alleged by the prosecution.
6. Learned counsel for the appellant further submits that on 03.09.2022 father of the prosecutrix lodged the F.I.R. under Section 354, 504, 506 I.P.C. and Section 3 (1) (d), 3 (1) dha), 3(2) (va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act stating therein that the daughter of the complainant is aged about 23 years was having love affairs with the co-accused Ritesh Jaiswal and he obtained some photographs of her daughter and started blackmailing her daughter and it was also stated in the F.I.R. that the marriage proposal was also given by the prosecutrix as well as the father, but the co-accused Ritesh Jaiswal denied, as they are of low caste.
7. Learned counsel for the appellant further submits that the prosecutrix in her statement recorded under Section 161 Cr.P.C. almost repeated the version of the F.I.R. and it was admitted by the prosecutrix that she was in relation with the co-accused Ritesh Jaiswal and she used to met with him and stayed in hotel as husband and wife and he has also made false promise of marriage, when the prosecutrix pressurized for marriage, the co-accused refused for the same and threatened her that if she talk about the marriage, he will viral the photographs, which was taken by him on his mobile phone. Thereafter, her statement under Section 164 Cr.P.C. was recorded in which she took somersault and allegation of gang rape was levelled against the appellant and his cousin brother, namely, Ritesh Jaiswal.
8. Learned counsel for the appellant further submits that the allegation of rape was levelled on the pressure crated by the police and family members, whereas no such incident took place at all. It is a case of love affairs with the co-accused Ritesh Jaiswal and the prosecutrix. The appellant was not involved in any manner in the present case, but only to create pressure his name has been taken by the prosecutrix.
9. Learned counsel for the appellant further submits that the allegation of rape got demolished after perusal of the medical report, wherein the doctor has clearly stated that no definite opinion about sexual assault can be given and according to pathologist report two vaginal smear slides were found to be negative for spermatozoa. Hymen were old, torned and healed. Urine Pregnancy Test came negative. Thus, the medical report does not support the allegation of rape either on the appellant or on the co-accused Ritesh Jaiswal.
10. Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 03.10.2022, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.
11. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated 05.11.2022 passed by the Court of Special Judge SC/ST Act, Barabanki in Bail Application No. 3356 of 2022: Amam Jaiswal Vs. State of U.P.), arising out of Case Crime No.307/2022, under Sections 376D, 504, 506 I.P.C. and Section 3 (1) (d), 3 (1) dha), 3(2) (va), 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kursi, District Barabanki deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.
12. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 03.10.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
13. Per contra, Sri Dinesh Kumar Sharma, learned counsel for the opposite party No.2 has vehemently opposed the prayer for bail and submitted that the bail of the appellant be rejected, as the prima facie the appellant is involved in a henious offence and cognizable offence is made out against the appellant. Sri Ashok Kumar Srivastava, learned A.G.A. for the Sate made an agreement with the argument as advanced by learned counsel for the appellant and they prayed for rejection of the present appeal and submits that the appellant is not entitled to get any relief by this Court.
14. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that initially the F.I.R. was lodged under Section 354, 504, 506 I.P.C. and Section 3 (1) (d), 3 (1) dha), 3(2) (va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, there is no any allegation of any forceful relation. It was admitted by the complainant, who is the father of the prosecutrix that her daughter and the co-accused Ritesh Jaiswal was in love affairs and there was some agreement between the prosecutrix and the co-accused Ritesh Jaiswal that they will marry, but later on the family members of the co-accused Ritesh Jaiswal denied for marriage; in the statement under Section 161 Cr.P.C. she has almost repeated the version of the F.I.R. and has not levelled any allegation of forceful physical relation by the co-accused Ritesh Jaiswal; in her statement recorded under Section 164 Cr.P.C. she admitted this fact that the co-accused Ritesh Jaiswal took her to hotel and she remained there and made relation as husband and wife and she took somersault and allegation of gang rape was levelled against the appellant and his cousin brother, namely, Ritesh Jaiswal, there appears force in the argument of learned counsel for the appellant that the medical report of the prosecutrix does not support the version of the prosecution regarding allegation of rape, as the doctor has clearly stated that no definite opinion about sexual assault can be given and according to pathologist report two vaginal smear slides were found to be negative for spermatozoa. Hymen is old, torned and healed. Urine Pregnancy Test came negative and further considering the fact that appellant is in jail since 03.10.2022 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and further the law laid down by the Hon'ble Apex Court in the cases of Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record, the impugned order passed by the trial court is liable to be set aside.
15. Accordingly, the appeal is allowed. Consequently, the order dated 05.11.2022 passed by the Court of Special Judge SC/ST Act, Barabanki in Bail Application No. 3356 of 2022: Amam Jaiswal Vs. State of U.P.), arising out of Case Crime No.307/2022, under Sections 376D, 504, 506 I.P.C. and Section 3 (1) (d), 3 (1) dha), 3(2) (va), 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kursi, District Barabanki is hereby reversed and set aside.
16. Let the appellant, Aman Jaiswal, be enlarged on bail in Case Crime No.307/2022, under Sections 376D, 504, 506 I.P.C. and Section 3 (1) (d), 3 (1) dha), 3(2) (va), 3(2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kursi, District Barabanki with the following conditions:-
(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.
(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-
(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.
(b) 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, and
(c) 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.
(iii) The appellant shall cooperate with investigation /trial.
(iv) The appellant 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.
(vii) The appellant shall remain present, 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 appellant 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.
17. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.
18. The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.
Order Date :- 10.10.2023 Arvind