Ashish Yadav v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 9949 of 2023 Appellant :- Ashish Yadav Respondent :- State of U.P. and Another Counsel for Appellant :- Shyam Shankar Shukla,Ashok Kumar Tiwari Counsel for Respondent :- G.A. Hon'ble Mayank Kumar Jain,J.

¶1Heard learned counsel for the appellant, learned Additional Government Advocate for the State of U.P. and perused the record.

¶2This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellants with the prayer to set aside the order dated 09.05.2023 passed by learned Additional District and Session Judge, Court No. 2/Special Judge (SC/ST Act), Kanpur Dehat in Case Crime No. 831 of 2007, under Sections 504, 506 I.P.C., Section 3(1)(10) of SC/ST Act, Police Station Rura, District Kanpur Dehat.

¶3There is an allegation against the appellant that informant had suspicion that appellant had enticed away her sister aged 15 years on 28.05.2023 at around 1:00 p.m

¶4Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. F.I.R was lodged at12:15 p.m while the prosecutrix was recovered at 1:10 p.m on the same day. Prosecutrix was not recovered from the company of the appellant. It is also submitted that prosecutrix in her statement stated that she has taken Rs 20,000/- from her home but this fact has been controverted by the mother of the prosecutrix during her statement. The prosecutrix during her statement recorded under Section 161 Cr.P.C did not make any allegation against the appellant. In her initial statement recorded under Section 161 Cr.P.C, prosecutrix stated that she accompanied with the appellant of her own sweet will. The proseuctrix refused to undergo for her medical examination. The appellant is languishing in jail since 09.08.2023 having no criminal history and the age of the appellant is 70 years. 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.

¶5Per contra, learned A.G.A. vehemently opposed the prayer for bail and submitted that during statement recorded under Section 164 Cr.P.C the victim has stated that she was enticed away by the appellant and he was mounting pressure upon the prosecutrix to perform marriage with him. As per the ossification test report radiological age of the prosecutrix was determine to be 17 years so she is minor at the time of incident. The mother of the prosecutrix has also stated her age to be 17 years.

¶6In rebuttal, it is submitted that the law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out.

¶7It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the impugned order passed by the trial court is, hereby, set aside.

¶8Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that the appellant is entitled to be enlarged on bail.

¶9Let appellant, Ashish Yadav be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) 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.

(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iii) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

¶10In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

¶11The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment.

¶12It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

¶13The criminal appeal is allowed. Order Date :- 1.12.2023 PS High Court of Judicature at Allahabad