Durgesh and Another Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:36796

Court No. - 13

Case :- CRIMINAL APPEAL No. - 2467 of 2022 Appellant :- Durgesh And Another Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Ajeet Kumar Singh,Ajeet Kumar Singh,Satyendra Kumar Tiwari

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Counsel for Respondent :- G.A.,Durga Prasad Singh,M.V.S. Chauhan

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Hon'ble Saurabh Lavania,J.

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Case called out. Despite notice, as appears from Annexure No. CA-1 to the counter affidavit of State, no one appeared on behalf of the opposite party No. 2, though, the names of Durga Prasad Singh, Advocate and Sri M.V.S. Chauhan, Advocate are shown in the cause list as counsel for the opposite party. Learned AGA is present in the Court. In these circumstances, the Court proceeded to hear the appeal on merits.

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Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.

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The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the order dated 22.09.2022 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 6568/2022 arising out of Case Crime No. 187 of 2022, under Sections- 147, 148, 323, 376D, 34, 504, 506 I.P.C. and Sections-3(1) r, s, 3(2)(Va), 3(2)(V) of SC/ST Act, P.S.Mall, District- Lucknow.

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While pressing the instant appeal, learned counsel for the appellant submitted that on account of fetching water from hand pump situated in the vicinity, some altercation took place between family members of appellants and complainant/victim/opposite party No. 2, in which, family members of both the sides sustained simple injuries and therefore, an NCR from the side of appellants was lodged at about 13.21 hours on 14.05.2022 and taking benefit of caste, the opposite party No. 2 lodged an FIR on the same day i.e. 14.05.2022 at about 13.57 hours making allegations to attract offence under Sections 147, 148, 323, 354, 504, 506 IPC and Sections 3(1)(da), 3(1)(dha) and 3(2)(va) of SC/ST Act.

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A perusal of the aforesaid FIR indicates that the same is against five persons and all these persons assaulted the opposite party No. 2/informant, her husband namely Kaushal Kishore, her mother-in-law namely Ketiki and her brother-inlaw namely Subhash with lathi, danda and knife, however, a bare perusal of injury report indicates that all the persons sustained simple injuries, which creates doubt on the story narrated by the opposite party No. 2 and further, out of five persons named in the FIR, three are real brothers, who tried to outrage the modesty of opposite party No. 2, which is improbable and in this view of the matter, it is apparent that the story in FIR is completely false and concocted.

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It is further stated that during investigation, the opposite party No. 2 supported the story of prosecution, however, before the court concerned while recording her statement in terms of Section 164 Cr.P.C., the opposite party No. 2 changed the basic version of the story of prosecution by alleging that the appellants committed rape with her. Thus, the story of prosecution is not intact.

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It is also stated that there is no medical evidence in support of the allegations made by the opposite party No. 2 based upon which during investigation Section 376D IPC was added.

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It is further stated that the appellants having no criminal history are languishing in jail since 08.06.2022 and trial is not proceedings as required under the law including Section 309 Cr.P.C. In these circumstances, the impugned order dated 22.09.2022 is liable to be set-aside and the appellants are entitled to be released on bail and the appeal is liable to be allowed.

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Learned A.G.A. vehemently opposed the prayer of the appellants, however, he could not dispute the above contentions made by the appellant's counsel particularly the contradictions in the FIR and the statement of victim recorded under Section 164 Cr.P.C.

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Considered the arguments advanced by the learned counsel for the appellant, learned A.G.A. and gone through the contents of the appeal, impugned order, F.I.R., as well as other relevant documents including the statement of the victim recorded under Sections 161 and 164 Cr.P.C.

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Upon due consideration of above facts and circumstances including the story setup in the FIR and the statements of victim recorded under Sections 161 and 164 Cr.P.C. and the medical report of the victim as also the fact that an NCR was lodged from the side of appellants and both side sustained injuries and keeping in view the fact that the trial of the case is not likely to be concluded in near future, this Court is of the view that the appeal has substance and it is accordingly, allowed .

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Order dated 22.09.2022 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 6568/2022 arising out of Case Crime No. 187 of 2022, under Sections- 147, 148, 323, 376D, 34, 504, 506 I.P.C. and Sections-3(1) r, s, 3(2)(Va), 3(2)(V) of SC/ST Act, P.S.- Mall, District- Lucknow is hereby set aside.

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Let the appellants- Durgesh and Satti Prasad be released on bail in the aforesaid case crime number on their furnishing personal bond of Rs. 25,000/and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

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(i) The appellants will cooperate with the prosecution during trial.

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(ii) The appellants will not tamper with the evidence during trial.

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(iii) The appellants will not pressurize/intimidate the prosecution witness(es).

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(iv) The appellants shall not commit an offence.

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(v) The appellants 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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(vi) The appellants shall remain present before the trial court on each date fixed, either personally or through counsel.

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(vii) The appellant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

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(viii) The appellants shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

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In case of default of above conditions 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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As this order relates to enlargement of the appellant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order.

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Order Date :- 14.5.2024 Arun/-

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Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

Durgesh and Another v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

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Durgesh and Another v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

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