Allahabad High Court
Umesh And Another vs State Of U.P. And Another on 20 November, 2019
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL APPEAL No. - 4509 of 2019 Appellant :- Umesh And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Manoj Kumar Rai Counsel for Respondent :- G.A.,Satish Kumar Tyagi Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A for the State and perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the impugned order dated 24.05.2019 passed by Special Judge, SC/ST Act/Additional Sessions Judge, Room No.2, Saharanpur in Bail Application No.1619 of 2019(Umesh and another Vs. State of U.P) arising out of case crime no.4 of 2018 under Sections 376D, 506 IPC and Section 3(2)(10) of SC/ST Act, Police Station-Badgaon, District-Saharanpur.
Learned counsel for the appellant submitted that the applicants inter se related to each other are uncle and nephew. It is next submitted that after much delay, the husband of the victim has lodged the FIR on 05.01.2018 under sections 376-D, 506 IPC and Section 3(1)(XII) of SC/ST Act. This FIR came into existence through application under Section 156(3) Cr.P.C. whereby it is alleged that the informant's wife went for her treatment to the doctor on 06.11.2017 around four in the evening, while she was going to enroute, she was intercepted by the applicants i.e. Umesh and Adesh to whom, she has got previous acquaintance and two other persons over-powered her and taken her in a car and administered some intoxicants. Resultantly, she got unconscious and thereafter, in the stage of unconsciousness, all of them established corporeal relationship with informant's wife. The informant belongs to scheduled caste community(chamar) and the applicants have abused her by taking her name of caste in a derogatory way. Learned counsel for the appellant has canvassed following arguments for the purpose of bail :-
(i) After lodging of this FIR, police started investigation and submitted its final report/closure report in the matter and suggested the Court to proceed against the informant in appropriate sections of I.P.C. by filing Jurmkhariza Report. It is contended by learned counsel for the appellants that the investigation of the entire episode is done by the officer of C.O. rank(Gazetted Officer).
(ii) Learned counsel for the appellants has drawn the attention of the Court to Annexure-11 i.e. report given by the C.O. The report reveals that on 08.07.2017, an FIR was lodged as Case Crime No.118 of 2017 under Sections 376D, 506 IPC by Km. Vanshika d/o Umesh Tyagi(applicant no.1). It is mentioned in the report that Rakesh Tyagi, who is the uncle of Anil Tyagi and Rajiv Tyagi, is the owner of bricklin and Neeraj Kumar(informant of the present case) and his wife worked as a labour. Rakesh Tyagi is the influential person of his area and just to mount pressure upon Umesh Tyagi and to neutralize the impact of Case Crime No.118 of 2017, Rakesh Tyagi used Neeraj and his wife Smt. Komal by lodging frivolous FIR against the appellants. The medical report as well as 161 Cr.P.C. statement of the doctor, in no uncertain terms, casts grave doubt upon the very factum of sexual assault upon the victim. Besides this, there are vital inconsistency in 161 and 164 Cr.P.C. statement of the victim which further deepens the veracity of the prosecution story.
Per contra, learned counsel for the respondent vehemently opposed the prayer for bail mentioning therein that there are consistent allegations in 161 and 164 Cr.P.C. statement of the victim. It is further stated that despite of the best effort, informant's wife could not be examined well within time so as to ascertain the fact of rape upon her.
After hearing the contesting parties, it seems that police, after having in-depth investigation, submitted a closure report and suggested for initiation of proceedings against opposite party no.2 for levelling a false case against the appellants and only on the protest petition, the appellants were summoned vide order dated 24.12.2018. This by itself castes serious doubt upon the prosecution story. Besides this, it is the consistent stand of the victim that when she became unconscious, she was ravished by four persons. There are injuries over her external body. This fact has not been corroborated by any medical evidence and it is amusing that how a lady, who is already unconscious, can count number of assailants who ravished her and lastly inter se relationship between the applicants are uncle and nephew. It seems slightly exaggerated that both the appellants would jointly have sex with a woman.
The submission made by learned counsel for the appellants, prima facie, is quite appealing and convincing for the purpose of bail.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the appellants-Umesh and Aadesh, be released on bail in Bail Application No.1619 of 2019(Umesh and another Vs. State of U.P) arising out of case crime no.4 of 2018 under Sections 376D, 506 IPC and Section 3(2)(10) of SC/ST Act, Police Station-Badgaon, District-Saharanpur on their furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPELLANTS WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPLICANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.
(iii) THE APPELLANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iv) IN CASE, THE APPELLANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT 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 IPC.
(v) THE APPELLANTS SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT 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.
However, it is made clear that any wilful violation of above conditions by the appellants, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated 24.05.2019 passed by Special Judge, SC/ST Act/Additional Sessions Judge, Room No.2, Saharanpur, is hereby set aside.
Order Date :- 20.11.2019 Sumit S