Omveer v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 8841 of 2023 Appellant :- Omveer Respondent :- State of U.P. and Another Counsel for Appellant :- Anand Kumar Tiwari Counsel for Respondent :- G.A.,Vivek Kumar Sharma Hon'ble Mayank Kumar Jain,J. Counter affidavit filed by learned counsel for the informant is taken on record. Heard learned counsel for the appellant, Sri Vivek Kumar Sharma, learned counsel for the informant, learned Additional Government Advocate for the State of U.P. and perused the record. This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 07.07.2023 passed by learned Special Judge (SC/ST) Act in Bail Application No. 4542 of 2023, arising out of Case Crime No. 151 of 2023, under Sections 376, 366, 323, 504 IPC and 3 (2) 5 of SC/ST Act, Police Station Kirawali, District Agra. As per prosecution version, the informant was a married lady. She divorced her earlier husband as she was having intimate relation with the appellant. On 17.05.2023, appellant called her and asked her to come to Ahmadabad alongwith one Shyamveer. She had gone Ahmdabad from where the appellant took her to Rajkot. In Rajkot, appellant kept her in a room and established physical relation with her. Thereafter, appellant continued to make physical relation with her on the pretext to marry with her. When victim made pressure to marry with him, he abused and threatened her by indicating her with caste related words. He refused to marry with her. Learned counsel for the appellant argued that the appellant is innocent and he has been falsely implicated in this case.It is further submitted that victim is a major lady and she was a consenting party. During her statement recorded under Section 161 Cr.P.C., she admitted that she was having conversations with the appellant since last 6 to 7 years and physical relation were established with her according to her consent. From the perusal of her statement recorded under Section 164 Cr.P.C., it transpires that she was a consenting party. Medical report of the victim does not corroborate the version of F.I.R. The appellant does not have any criminal history to his credit. Lastly, it is submitted by learned counsel for the appellant that there is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. The appellant is languishing in jail since 27.06.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case. Per contra, learned A.G.A. assisted by learned counsel for the informant opposed the prayer for bail by contending that victim in her statements recorded under Section 161 and 164 Cr.P.C. consistently corroborated the version of F.I.R. However, they could not dispute the aforesaid factual aspects of the matter. Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, this Court is of the view that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside. Let the appellant, namely, Omveer involved in the above Case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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

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

(iii) The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.

(iv) 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.

(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. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 17.10.2023 AKT High Court of Judicature at Allahabad