Azad vs State of U.P. Thru. Prin. Secy. Home Lko.

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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CRIMINAL APPEAL No. - 3100 of 2024

Azad

.....Appellant(s)

Versus

State Of U.P. Thru. Prin. Secy. Home Lko.

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.....Respondent(s)

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: Counsel for Appellant(s) Arjun Kumar Kaushal, Devendra Pratap, Shashank Shekhar Singh Counsel for Respondent(s) : G.A., Uday Pratap Singh, Vaibhav Srivastava

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Court No. - 27

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HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

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(Order on Bail Application/ Suspension of Sentence)

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Heard learned counsel for the appellant/ applicant and learned A.G.A. appearing for the State.

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Pleadings have already been exchanged between the parties.

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The instant criminal appeal under Section 415(2) of BNSS has been preferred against the judgment and order dated 13.09.2024 passed by learned Additional Sessions Judge (Fast Track Court), Hardoi in S.T. No.409 of 2019 "State Vs. Azad", arising out of Complaint No.01 of 2019, under Sections 376, 506 IPC, Police Station Kachhauna, District Hardoi, whereby the trial court convicted and sentenced the appellant, under Section 376 IPC for 07 years rigorous imprisonment alongwith Rs.5,000/- fine and under Section 506 IPC for 03 years rigorous imprisonment alongwith Rs.1,000/- fine with default stipulation.

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Learned counsel for the appellant submitted that according to prosecution version, the victim was a married lady of 35 years of age. In application under Section 156(3) CrPC filed before the court of the Judicial Magistrate, Hardoi on 27.03.2013 with the allegation that on 03.03.2012 at 9 P.M. when she had gone to feed

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the cattle in the paddock, the accused suddenly appeared before her, who was hiding at the place. He pointed a gun towards her and committed rape on her. After the commission of rape, the accused left her. After she made a noise, her son and witness, Mrs. Meena, came on the spot and saw the accused running. When they challenged him, he threatened them with their lives. On 05.03.2012, she reached the police station to get an FIR lodged but neither was her FIR lodged nor was her medical examination done. The FIR was lodged on 02.03.2012 on the directions of the court on an application under Section 156(3) Cr.P.C. The police investigated the case and filed final report in favor of the appellant with the finding that the allegations were not substantiated. The victim filed a protest petition before the court and the court summoned the appellant for said charges on the protest petition vide order dated 07.12.2014. The appellant was arrested and subsequently released on bail by order of the competent court. The case proceeded as a complaint case.

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He next submitted that the appellant has been falsely implicated in the case. There are a number of discrepancies in the prosecution case, which were pointed out before the court below but the learned trial court did not effectively deal with them and passed judgment and order.

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He next submitted that there is apparent inconsistency in the statements of the witnesses and the victim adduced during trial. The appellant has been held in jail custody since 13.09.2024 for around 1 year, 5 months and he has also been in jail custody for about 4 months during trial; thus, he has undergone 1 year, 9 months imprisonment so far. The appeal is not likely to be heard in the near future due to huge backlog. PW2 is an interested witness as he has categorically stated in his cross-examination that he had not seen the incident, whose evidence cannot be trusted at any point, being the son of the prosecutrix. The other witness, Meena, has not been examined by the prosecution as there are many anomalies in the evidence of PW-1 (prosecutrix). No reliance can

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be placed on her sole testimony, even though an application under Section 156(3) Cr.P.C. was filed at a later stage and the police submitted final report in favor of the appellant.

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He lastly submitted that the appellant does not have any prior criminal history. He abides by the conditions of the bail in case he is granted liberty of bail. In the medical examination report of the victim, no internal injuries were found. The victim, in her examination in chief, has not stated that she was subjected to any 'marpeet' but in cross-examination, it is stated that she was assaulted by the accused.

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Per contra, learned A.G.A. opposed the plea for bail and submitted that there is reliable evidence against the appellant; the learned trial court has rightly convicted and sentenced him.

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Considering the rival submissions of learned counsel for the parties, the nature of the offence, quantum of sentence awarded to the appellant, period of custody, totality of the facts and circumstances of the case and without expressing any opinion on the merits of the case, I find it a fit case for grant of bail.

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Accordingly, I hereby direct the trial court/ competent court to enlarge the appellant, Azad , on bail in the aforesaid case crime number, on furnishing two sureties and a personal bond each to the satisfaction of the court concerned, with the following conditions:-

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i. The appellant/ applicant shall cooperate in early disposal of the appeal without seeking unnecessary adjournments.

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ii. The appellant/ applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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On acceptance of the bail bonds and the personal bond, the court

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