Mohammad Taz v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 1484 of 2022 Appellant :- Mohammad Taz Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Shishir Pradhan,Kuldeep Bajpai Counsel for Respondent :- G.A.,Aklavya,Sarjoo Ram Hon'ble Shamim Ahmed,J.

¶1Case is taken up in the revise call.

¶2Today when the case is taken up, despite several opportunities granted to respondent No.2 till date no counter affidavit has been filed in the present case by respondent No.2. Learned Counsel for the respondent No.2 submits that respondent No.2 does not want to file any counter affidavit. Counter affidavit on behalf of the State-respondent No.1 has already been filed in reply thereto learned Counsel for the appellant has filed the rejoinder affidavit. Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed for final arguments to decide the present appeal.

¶3Heard Sri Kuldeep Bajpai, learned counsel for the appellant, Sri Ashok Kumar Srivastava, learned A.G.A-I for the State, Sri Aklavya, learned Counsel for the respondent No.2 and perused the entire record.

¶4This Criminal Appeal under Section 14-A (ii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 26.05.2022 passed by the court of learned Special Judge (SC/ST Act), Barabanki in Bail Application No.1298/2021 (Mohammad Taz vs. State of U.P.) arising out of Case Crime No.247/2021, under Sections 354, 323, 504, 506, 34, 376 I.P.C. and Section 3(1)

(DA), 3(1)(DHA) and 3(2)(V) of SC/ST Act, Police Station-Zaidpur, District-Barabanki, whereby the bail application of the appellant has been rejected.

¶5Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. No such incident, as alleged by the prosecution, took place. He further submits that initially the F.I.R. was lodged under Section 354, 323, 504 and 506 I.P.C. and Section 3(1)(DA), 3(1)(DHA) and 3(2)(V) of SC/ST Act against the co-accused, namely-Akash Verma @ Chinju regarding molestation of sister of the complainant, who was aged about 19 years but there is no allegation in the F.I.R. that the appellant has committed rape with the prosecutrix, thereafter the statement of the prosecutrix was recorded under Section 161 Cr.P.C., in which she has leveled allegation of molestation against co-accused, namely-Akash Verma @ Chinju and the present appellant, whereas, the prosecutrix in her statement recorded under Section 164 Cr.P.C. has developed her case and took a somersault stating therein that both the accused persons have sexually assaulted her and inserted a finger in her private part and made a video of the alleged incident. Thereafter, in her second statement recorded under Section 161 Cr.P.C. she has stated that her first statement under Section 161 Cr.P.C. was not complete as she was traumatized by the molestation done by the accused persons. She also stated that both the accused persons have sexually assaulted her and also made a video of the alleged incident.

¶6He further submits that thereafter, the prosecutrix in her statement recorded under Section 161 and 164 Cr.P.C., on the pressure created by the police and her family members, developed her case and allegation of rape was leveled, whereas, in the F.I.R. no allegation of rape was leveled against the appellant, thus, the statement of the victim recorded under Section 161 and 164 Cr.P.C. was afterthought and was given under the pressure created by the police and her family members only with the intention to get some financial aid from the State Exchequer.

¶7He further submits that the allegation of rape got demolished after perusal of the medical report, wherein, the Doctor in his report has clearly indicated that there was no major external injury. He further submits that the prosecutrix was aged about 19 years, thus, she was major at the time of incident so she did not give her consent for internal examination, thus, he submits that it is case of false implication only with an intention to defame the appellant and his entire family in the society. He further submits that the co-accused, namely-Aakash Verma @ Chinju has already been granted bail by the Coordinate Bench of this Court vide order dated 11.02.2022 passed in Criminal Appeal No.1886 of 2021. He further submits that the case of the present appellant is not on the worse footing than the case of co-accused, thus, appellant may also be released on bail and the present appeal may be allowed.

¶8Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused-appellant is having a criminal antecedent of one case, this fact finds mention at paragraph No.15 of the affidavit filed in support of the bail application and he is in jail since 04.10.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶9Learned A.G.A. opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant.

¶10After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there are contradictions in the statement of victim recorded under Sections 161 and 164 Cr.P.C. and the version of the F.I.R., she has not made any allegation of rape against the appellant in the F.I.R. but she took somersault in the statement recorded under Section 161 and 164 Cr.P.C. as well as second statement of the victim recorded under Section 161 Cr.P.C., wherein, allegation of rape was leveled and after perusal of the medical report, as the doctor in his opinion has opined that there was no major external injury found on the person of the prosecutrix and her age was found to be 19 years and also taking note of the fact that the prosecutrix has not given her consent for internal examination and also considering the fact that the co-accused, namely-Aakash Verma @ Chinju has already been granted bail by the Coordinate Bench of this Court vide order dated 11.02.2022 passed in Criminal Appeal No.1886 of 2021 and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

¶11Accordingly, the appeal is allowed. Consequently, the impugned order dated 26.05.2022 passed by the court of learned Special Judge (SC/ST Act), Barabanki in Bail Application No.1298/2021 (Mohammad Taz vs. State of U.P.) arising out of Case Crime No.247/2021, under Sections 354, 323, 504, 506, 34, 376 I.P.C. and Section 3(1)(DA), 3(1)(DHA) and 3(2)(V) of SC/ST Act, Police Station-Zaidpur, District-Barabanki is hereby set aside and reversed.

¶12Let the appellant, Mohammad Taz be released on bail in the Case Crime No.247 of 2021, under Sections 354, 323, 504, 506, 34, 376 I.P.C. and Section 3(1)(DA), 3(1)(DHA) and 3(2)

(V) of SC/ST Act, Police Station-Zaidpur, District-Barabanki with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) 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, and

(c) 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.

(iii) The appellant shall cooperate with investigation /trial.

(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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain present, 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 Cr.P.C. If in the opinion of the trial court 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 against him in accordance with law.

¶13It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

¶14The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. Order Date :- 27.10.2023 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench