Allahabad High Court
Dilshad vs State Of U.P. And Another on 30 August, 2022
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- CRIMINAL APPEAL No. - 2263 of 2022 Appellant :- Dilshad Respondent :- State of U.P. and Another Counsel for Appellant :- Syed Faiz Hasnain,Mohd. Hasham,Sundeep Shukla,Syed Riyaz Askari Counsel for Respondent :- G.A.,Deepak Rana Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the appellant, learned Additional Government Advocate for the State of U.P., Mr. Deepak Rana, learned counsel appearing on behalf of the informant/opposite party no. 2 and perused the record.
This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 29.03.2022 passed by learned Special Judge, SC/ST Act, Muzaffar Nagar in Bail Application No. 790 of 2022 (Dilshad vs. State of U.P.) arising out of Case Crime No. 41 of 2022, under Sections 376 I.P.C. and Section 3(2)(5) of SC/ST Act, Police Station Purkaji, District Muzaffar Nagar.
As per the prosecution case in brief, informant Jitendra, husband of the victim has lodged an F.I.R. on 21.02.2022 with regard to an incident alleged to have taken place on 20.02.2022 for the offence under Sections 376 IPC and Section 3(2)(v) of SC/ST Act against the appellant alleging inter-alia that the appellant took his wife to jungle when she took lift from the appellant for her village. F.I.R. further alleges that when the informant along with the villagers searched for his wife, his wife was found in the forest who was very nervous and told him that the appellant-Dilshad has committed rape upon her.
The main substratum of argument of learned counsel for the appellant is that the appellant has been falsely implicated in this case. F.I.R. has been lodged by the husband of the victim on the narration by the victim herself. During the course of investigation, victim in her statement under Section 161 and 164 Cr.P.C. has supported the prosecution case by making allegation of rape against the appellant but when informant and victim were examined before the trial court as PW1 and PW2, they have not supported the prosecution case and victim has been declared hostile by the trial court at the request of prosecution. Copy of the statement of PW1 and PW2 have also been brought on record as Annexure No. SA-I to the supplementary affidavit dated 11.07.2022 and 02.08.2022 respectively. On the strength of aforesaid facts, it is also argued that there is a bleak chance of conviction of the appellant who has no criminal history and is languishing in jail since 22.02.2022. Lastly, it is submitted by the learned counsel for the appellant that there is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. In case, the appellant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
On the other hand, learned A.G.A. opposed the prayer for bail by contending that the victim in her statement under Section 161 and 164 Cr.P.C. has supported the prosecution case but before the trial court, she has changed her version by contending that she had given the statement under Section 164 Cr.P.C. before the Magistrate at the instance of some villagers and on the pressure of police. This circumstance fairly indicates that the victim had been won over from the side of accused.
Learned counsel appearing on behalf the informant and victim did not oppose the prayer for bail of the appellant and submits that since the victim has been declared hostile before the trial court, therefore, he has nothing to say in the matter.
Having heard the learned counsel for the parties and perusing the record, I find substance in the submission of learned counsel for the appellant that the victim has not supported the prosecution case before the trial court and has been declared hostile, therefore, the appellant has made out a case for bail. The impugned order is liable to be set-aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.
Let the appellant Dilshad involved in the above case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The appellant will not tamper with the evidence during the trial.
(ii) The appellant will not pressurize/ intimidate the prosecution witness.
(iii) The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) 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.
(v) 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.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
However, this Court is also of the view that under the facts and circumstances of the case, possibility of winning over the informant and the victim from the side of accused cannot be ruled out, which is a matter of adjudication by the trial court at the appropriate stage.
The trial court is directed to ensure the compliance of provisions of Section 344 Cr.P.C. at the appropriate stage, if it deems fit under the facts and circumstances of this case.
Copy of this order be sent to the trial court within a week for necessary information.
Order Date :- 30.8.2022 Saurabh