Dhirendra Kumar Vs State of U.P. Thru. Prin. Secy. Home and Another

Neutral Citation No. - 2024:AHC-LKO:37248

Court No. - 13

Case :- CRIMINAL APPEAL No. - 628 of 2022

Appellant :- Dhirendra Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Home And Another Counsel for Appellant :- Suresh Kumar Yadav Counsel for Respondent :- G.A.,Onkar Singh,Satya Narayan Mishra

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Hon'ble Saurabh Lavania,J.

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Rejoinder affidavit filed by the appellant in Court today is taken on record.

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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 18.01.2022 passed by Special Judge, SC/ST Act, Barabanki in Bail Application No. 55 of 2022 arising out of Case Crime No. 496 of 2021, under Sections 376, 354, 452, 504, 506 I.P.C. and Sections 3(1)(da), 3(1)(dha), 3(1)(w), 3(2)(v) of SC/ST Act, P.S. Fatehpur, District- Barabanki.

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While pressing the present appeal and impeaching the order, under appeal, dated 18.01.2022, learned counsel for the appellant stated that on account of a civil dispute pertaining to way (ररास्तरा) between the family of co-accused Arvind Kumar S/o Ram Tej and the family of the informant including the victim, the appellant and co-accused Arvind Kumar were falsely implicated by lodging the FIR dated 07.12.2021 at about 16:28 hours alleging therein that at about 02 a.m. on 07.12.2021, the appellant outraged the modesty of sister of the informant, who at relevant point of time was sleeping in the house along with the daughter of the informant, and as per this FIR, the role of catching hold was assigned to the co-accused Arvind Kumar, who

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admittedly is patidar of the informant meaning thereby a close relative of the informant.

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In continuation, he further submitted that against co-accused Arvind Kumar serious allegations have not been levelled only taking note of the fact that he is patidar of the informant and this fact as also the fact that there exists though civil dispute between the family of co-accused Arvind Kumar S/o Ram Tej and the family of the informant is apparent from the statement of the informant, which is on record as Annexure No. R.A.-1 to the rejoinder affidavit filed today.

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He further submitted that the story of the prosecution is completely false and concocted. To support this, he submitted as under:

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(i) Victim before the Investigating Officer as also before the trial Court supported the story of the prosecution, however, before the doctor concerned, the victim stated that the appellant tried to outrage the modesty. Therefore, the story of the prosecution is not intact.

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(ii) The victim was medically examined on 07.12.2021 and the medico-legal report does not support the story of the prosecution as a perusal of the same would show that the doctor concerned found no mark of injury based upon which the offense as indicated under the FIR can be attracted.

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He further submitted that the appellant is in jail since 08.12.2021 and the charges were framed in the month of December, 2023, however, til date the prosecution has not produced any witness before the trial Court.

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He further submitted that the trial is not proceeding as required under the law including the Section 309 Cr.P.C.

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He also stated that co-accused Arvind Kumar has already been released on bail.

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In regard to the criminal history of the appellant, he submitted that the same has been explained in Para 6 of the rejoinder affidavit and in this case the appellant has already been exonerated. Thus, indulgence of this Court is required in the matter and the impugned order is liable to be set aside and the appeal is liable to be allowed.

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Learned A.G.A. vehemently opposed the prayer of the 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-applicant, learned A.G.A., and gone through the contents of the appeal, impugned order, F.I.R., medical report as well as the statements of the victim.

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Upon due consideration of above facts and circumstances including the medical opinion as also that the co-accused Arvind Kumar has already been released on bail and 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 18.01.2022 passed by Special Judge, SC/ST Act, Barabanki in Bail Application No. 55 of 2022 arising out of Case Crime No. 496 of 2021, under Sections 376, 354, 452, 504, 506 I.P.C. and Sections 3(1)(da), 3(1)(dha), 3(1)(w), 3(2)(v) of SC/ST Act, P.S. Fatehpur, District- Barabanki is set aside.

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Let appellant Dhirendra Kumar 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 :- 15.5.2024 Mohit Singh/-

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Digitally signed by :- MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench

Dhirendra Kumar v. State of U.P. Thru. Prin. Secy. Home and Another

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Dhirendra Kumar v. State of U.P. Thru. Prin. Secy. Home and Another

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