Allahabad High Court
Phool Chand And Another. vs The State Of U.P. on 16 July, 2010
Bench: Abdul Mateen, Yogendra Kumar Sangal
Court No. - 25 Case :- CRIMINAL APPEAL No. - 223 of 2007 Petitioner :- Phool Chand And Another. Respondent :- The State Of U.P. Petitioner Counsel :- Nagendra Mohan Respondent Counsel :- Govt.Advocate Hon'ble Abdul Mateen,J.
Hon'ble Yogendra Kumar Sangal,J.
(Crl. Misc. Application No. 24070 of 2010) This is second application for bail in pending appeal, moved on behalf of the appellant No. 1, Phool Chand who has been convicted in Session Trial No. 292 of 2006, under Section 376 IPC and has been sentenced for the maximum period of life imprisonment with fine stipulation by the Additional Session Judge/Fast Track Court No. 2, Faizabad. His plea for earlier bail was refused by this court on 13.09.2007, hence this Second Application.
It has been argued by the learned counsel for the appellant that P.W. 5, the prosecutrix who is said to have been subjected to rape by the present applicant, Phool Chand and one another Dinesh Kumar Yadav on 06.12.2006 at about 5 P.M. The statement of the prosecutrix which was recorded in the court as P.W. 5. It has been argued by the learned counsel for the appellant that Medical Examination Report of the prosecutrix goes to show that her hymen was found to be old torn and the Doctor has opined that she was habitual of sexual intercourse, whereas in her cross-examination, while being examined as P.W.-5, she has stated that she had never been in companion of a male for committing sexual intercourse before commission of the present offence, as such, it has been put forward by the learned counsel for the appellant that the prosecutrix cannot be said to be reliable for the reason that Medical Examination Report shows otherwise. It has also been stressed by the learned counsel for the appellant that as per Medical Examination Report, age of the prosecutrix has been shown to be 18 years.
We have gone through the Exhibit Ka-2, Ka-3 (medical examination report of the prosecutrix), Ka-4 (her School Leaving Certificate showing the prosecutrix's date of birth to be 5th February, 1992) as well as the medical opinion of the Doctor with respect of her age showing to be 18 years.
We also found that on the date of incident she was wearing under garment upon her Salwar and thus it is quite possible that she was in her mensuration period and the Doctor who had found blood oozing out from her Vagina may be in natural course. No doubt, at this juncture we found that atleast the statement of P.W.-5, the prosecutrix cannot be said to be reliable to the extent as she has stated that she did not have any extra sexual relationship with anybody prior to the incident. Apart from that the appellant is in Jail for about last four years and his appeal will take considerable long time in reaching its justifiable conclusion.
In the facts and circumstances, we hereby direct that the appellant Phool Chand convict of the aforesaid Session Trial be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate concerned.
Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the appellant within one month from the date of his release on bail.
Chief Judicial Magistrate concerned is directed to transmit to this Court photocopies of bond and sureties filed by the appellant to be preserved in the record maintained here.
Order Date :- 16.7.2010 Kaushal