Shahnwaj @ Dana v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 9462 of 2023 Appellant :- Shahnwaj @ Dana Respondent :- State of U.P. and Another Counsel for Appellant :- Dhiraj Kumar Pandey Counsel for Respondent :- G.A.,Ankit Srivastava,Ch. Dil Nisar Hon'ble Mayank Kumar Jain,J. Heard learned counsel for the appellant, 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 to enlarge him on bail in Case Crime No. 305 of 2023, under Sections 363, 376 I.P.C., Section 3(2)5 of SC/ST Act, Police Station Deoband, District Saharanpur. As per the F.I.R, there is an allegation that in the night of 20/21.05.2023, daughter of the informant was enticed away by the appellant. Learned counsel for the appellant submits that appellant is innocent and has been falsely implicated in this case. He further submitted that date of birth of the prosecutrix is 07.02.2005, therefore, she was major at the time of incident. It is further submitted that prosecutrix in her statement recorded under Section 161 Cr.P.C stated that she accompanied with the appellant at her own accord, the appellant has made false promise of marriage with her, she traveled from Saharanpur to Hawrah with the appellant. It is further submitted that during the entire journey she did not raise any alarm, therefore, she was a consenting party. It is also submitted that prosecutrix in her statement recorded under Section 164 Cr.P.C stated that she was having love affair with the appellant since last two three months and appellant did not addressed her with caste related words, therefore, no offence under Section 3(2)5 of S.C./S.T Act is made out against the appellant. It is also submitted that medical report of the victim does not corroborate with the prosecution version. The appellant is languishing in jail since 02.06.2023 having no criminal history 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 vehemently opposed the prayer for bail and submitted that consent of the prosecutrix was obtained under the influence since she was not aware of the fact that marriage between prosecutrix and appellant can not take place since they belong to different religion. 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 appellant, Shahnawaj @ Dana, 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 they are accused, or suspected, of the commission of which they are 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 :- 28.10.2023/PS High Court of Judicature at Allahabad