Allowed

Mukesh Yadav v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 2 Others

Allahabad HC24 Oct 2024/3080/2024

Case brief

AI extract

What is this about?

Appeal against bail rejection in rape and kidnapping case allowed. Court set aside lower court order and enlarged appellant on bail by personal bond and two sureties subject to standard conditions, clarifying no pre-judgment on merits.

What did the court decide?

Order setting aside bail rejection quashed; appellant released on bail via personal bond of Rs. 25,000 and two sureties of Rs. 25,000 each.

Mukesh Yadav Vs State of U.P. Thru. Prin. Secy. Home… — Bail and Remand | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:71867

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Court No. - 12

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Case :- CRIMINAL APPEAL No. - 3080 of 2024

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Appellant :- Mukesh Yadav Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And 2 Others Counsel for Appellant :- Devendra Upadhyay,Sanjay Kumar Mishra,Suraj Yadav Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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At the outset, learned counsel for the appellant stated that he may be permitted to make necessary corrections in the memo of appeal, which relates to particulars of opposite party no.2 and 3.

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The prayer sought has not been opposed.

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Considering the prayer sought, which is innocuous in nature, as also the same has also not been opposed and the corrections are also required in the matter, the learned counsel for the appellant is permitted to carry out necessary corrections in the memo of appeal, as prayed for, during the course of the day.

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Counter affidavit filed today by learned A.G.A. is taken on record.

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Considering Annexure C.A-1 of the counter affidavit filed by the State with a proof of service of notice upon opposite party nos.2 and 3, this Court finds that service of notice upon the opposite party no.2 and 3 is sufficient. However, no one appeared on behalf of the opposite party nos.2 and 3 to oppose the present appeal. In that view of the matter, this Court proceeds hear the instant appeal.

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Heard learned counsel for the appellant and learned A.G.A. for the State-respondent.

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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 impugned order dated 04.09.2024 passed by Special Judge, SC/ST Act, Pratapgarh in Bail Application No.1767 of 2024, arising out of Case Crime No.265 of 2023, under Sections 366, 376, 323, 504, 506 I.P.C. and Section 3(1)d, 3(1)dha, 3(2)v, 3(2)va of SC/ST Act, P.S. Aaspur Devsara, District Pratapgarh.

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Pressing the present appeal and impeaching the order, under appeal, dated 04.09.2024, it is stated that according to FIR, lodged by opposite party no.2 on 04.08.2023 registered as FIR No.0265 of 2023, the appellant enticed away the victim/opposite party no.3, daughter of the informant, on 26.07.2023 in the night at about 1:00 A.M.

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It is further stated that during the investigation upon recovery of the victim, the statement of the victim was recorded in terms of Section 161 Cr.P.C., which is annexed at page no.43 of the paper book. From a perusal of the statement of the victim, it appears that on the pretext of false promise of marriage, the victim on 26.07.2023 at about 11:00 P.M. left her house and accompanied the appellant to Lucknow and thereafter the appellant and victim went to Vapi, Gujarat and there both stayed at about 20-25 days in the house of brother-in-law of the sister of the appellant and thereafter from Vapi, Gujarat they visited Daman. During their stay in the State of Gujarat, the appellant, brother of the appellant, Durgesh Yadav and one Mahesh Yadav asked to solemnize the marriage with the present appellant and this fact related to marriage was informed by the victim to her mother. Thereafter on 14.12.2023 all of them started journey from Vapi Gujrat to reach their native place and on 15.12.2023 victim reached her parental house.

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It is further stated that in the same tune the victim stated

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before the court concerned while making statement in terms of section 164 Cr.P.C..

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It is further stated that in fact the victim in her own volition accompanied the appellant, though in the statement made by her in terms of Section 161 and 164 Cr.P.C. she levelled allegations that on the pretext of false promise of marriage she was enticed away by the appellant and the allegations regarding the extract of money has also been levelled.

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It is further stated that from the statement of the victim it is apparent that from 26.07.2023 to 14.12.2023 she stayed with the appellant but she never made any alarm at any point of time and travelled with the appellant from native place to Vapi, Gujarat and from Vapi Gujarat to native place, thus from the aforesaid it is apparent that it is a case of consent and offences, as indicated by the prosecution against the appellant including Sections 363, 376 I.P.C. are not made out.

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It is also stated that victim at the relevant point of time was aged about 18 years and 6 months.

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It is further stated that the appellant having no criminal history is in jail since 11.06.2024.

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It is further submitted that the chances of conviction of the appellant in the instant case are extremely bleak in view of the law related to establishing relationship on the pretext of false promise of marriage.

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He lastly submitted that all the aforesaid aspects of the case were not considered by the trial court, as such, the present appeal is liable to be allowed and the impugned order may be set aside and the appellant be enlarged on bail.

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Learned A.G.A. vehemently opposed the prayer of the

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appellant, however, he could not dispute the above contentions made by the appellant's counsel.

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Considered the arguments advanced by the learned counsel for the appellant as well as learned A.G.A., and gone through the contents of the appeal, impugned order, F.I.R. as well as 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 particularly the allegations against the appellant in FIR and statements of the victim, which prima facie indicate the consent of the victim, as also the period of incarceration and also 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 04.09.2024 passed by Special Judge, SC/ST Act, Pratapgarh in Bail Application No.1767 of 2024, arising out of Case Crime No.265 of 2023, under Sections 366, 376, 323, 504, 506 I.P.C. and Section 3(1)d, 3(1)dha, 3(2)v, 3(2)va of SC/ST Act, P.S. Aaspur Devsara, District Pratapgarh is set aside.

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Let appellant Mukesh Yadav , be released on bail in the aforesaid case crime number on his 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 appellant will cooperate with the prosecution during trial.

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

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

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(iv) The appellant shall not commit an offence.

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(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.

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(vi) The appellant 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 appellant 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 :- 24.10.2024 Anand/-

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

Mukesh Yadav v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 2 Others

Case brief

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Mukesh Yadav v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko and 2 Others

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