Allowed

Chhotakkey @ Rashid v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC27 Jul 2023/1605/2022

Case brief

AI extract

What is this about?

This criminal appeal against the rejection of a bail application in an IPC offence under the SC/ST Act was allowed. The court reversed the lower court order and enlarged the appellant on bail citing contradictions, lack of injuries, and excessive delay, subject to strict conditions.

What did the court decide?

Appellant enlarged on bail with conditions including personal bond, appearance, no tampering, cooperation, and trial expedition.

Chhotakkey @ Rashid Vs State of U.P. Thru. Prin… — Cheating and Forgery | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:49883

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 1605 of 2022 Appellant :- Chhotakkey @ Rashid Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another

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Counsel for Appellant :- Saurabh Kumar Srivastava,Avnish Kumar Tiwari,Bajhul Quamar Siddiqui,Brihaspati Mani Pathak Counsel for Respondent :- G.A.,Ashish Kumar Tiwari

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Hon'ble Shamim Ahmed,J.

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Heard Shri Avnish Kumar Tiwari, the learned counsels for the appellant as well as Shri Ashish Kumar Tiwari, learned counsel for the opposite party No.2 and Sri Veer Bhan Singh, the learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

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Pleadings between the parties have been exchanged.

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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 04.06.2022 passed by the court of learned Special Judge (S.C./S.T. Act), Hardoi in Bail Application No. 1250 of 2022, arising out of Case Crime No. 95 of 2022, under Sections 376-D and 452 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Tandiyaman, District Hardoi, whereby the bail application of the appellant has been rejected.

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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, even though the appellant was not present on the spot at the time of alleged incident.

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Learned counsel for the appellant further submits that the prosecutrix has lodged the F.I.R. on 14.03.2022 at 07.42 p.m. regarding the incident dated 13.03.2022 and as per the F.I.R. it has been stated that one Amit entered into the room and he gave 2-4

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rupees to the children, they went outside the room. Thereafter, Amit committed rape with the prosecutrix.

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Learned counsel for the appellant further submits that the prosecutrix in her statement recorded under Section 161 Cr.P.C. repeated the same version of the F.I.R. and has stated that Amit entered into the room and committed rape,, thus in the statement of the prosecutrix recorded under Section 161 Cr.P.C., the name of the appellant does not find place nor there was any allegation against him.

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Learned counsel for the appellant further submits that the statement of the husband of the complainant, namely, Ameer Chandra was recorded in which he has also repeated the same version of the | F.I.R. and has stated that Amit entered into the room and thereafter committed rape with her wife.

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Learned counsel for the appellant further submits that first time the name of the appellant came in picture in the statement of the prosecutrix recorded under Section 164 Cr.P.C. in her statement recorded under Section 164 Cr.P.C. she has stated that the appellant and Amit entered into the room and they have given Rs. 510 to her children, thus there is material contradiction in the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. even in the version of the F.I.R.

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Learned counsel for the appellant further submits that the entire story as developped by the prosecutrix is false and fabricated. The name of the appellant was taken to falsely implicated him due to village party bandi and enmity.

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Learned counsel for the applicant further submits that allegation of rape as levelled by the victim against the appellant in her statement recorded under Section 164 Cr.P.C. got demolished after perusal of her medical report wherein the concerned doctor found no external or internal injury on the body of the victim.

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Learned counsel for the applicant further submits that the prosecutrix is aged about 35 years and she is major and having 2-3 children and for financial gain she has implicated the appellant in the present case.

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Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 24.05.2022, who has no previous criminal history, and in case the appellant is enlarged on bail,

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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.

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For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated 04.06.2022 passed by the court of learned Special Judge (S.C./S.T. Act), Hardoi in Bail Application No. 1250 of 2022, arising out of Case Crime No. 95 of 2022, under Sections 376-D and 452 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Tandiyaman, District Hardoi deserves to be set aside and consequently, the accused/ appellant deserves to be enlarged on bail during pendency of the trial.

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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 24.05.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/appellant.

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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 the first time the name of the appellant came in picture in the

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statement of the prosecutrix recorded under Section 164 Cr.P.C. in her statement recorded under Section 164 Cr.P.C. she has stated that the appellant and Amit entered into the room and they have given Rs. 510 to her children, thus there is material contradiction in the statement of the prosecutrix recorded under Section 161 and 164 Cr.P.C. even in the version of the F.I.R., there appears force in the argument of learned counsel for the appelant that the allegation of rape as levelled by the victim against the appellant in her statement recorded under Section 164 Cr.P.C. got demolished after perusal of her medical report wherein the concerned doctor found no external or internal injury on the body of the victim, further considering the fact that appellant is in jail since 24.05.2022 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 the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP 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, both the impugned orders passed by the trial court are liable to be set aside.

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Accordingly, the appeal is allowed . Consequently, the order dated 04.06.2022 passed by the court of learned Special Judge (S.C./S.T. Act), Hardoi in Bail Application No. 1250 of 2022, arising out of Case Crime No. 95 of 2022, under Sections 376-D and 452 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Tandiyaman, District Hardoi is hereby reversed and set aside .

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Let the appellant, Chhotakkey alias Rashid, be enlarged on bail in Case Crime No. 95 of 2022, under Sections 376-D and 452 I.P.C. read with Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Tandiyaman, District Hardoi with the following conditions:-

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(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

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(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.:-

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(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

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(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

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(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.

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(iii) The appellant shall cooperate with investigation /trial.

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(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.

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(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.

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(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.

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(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.

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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.

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Order Date :- 27.07.2023

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Arvind

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Digitally signed by :- ARVIND KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Chhotakkey @ Rashid v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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Chhotakkey @ Rashid v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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