Mithlesh Lodh v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Court No. -16 Case :-CRIMINAL APPEAL No. -1312 of 2023 Appellant :-Mithlesh Lodh Respondent :-State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Appellant :-Dharmendra Kumar Misra Counsel for Respondent :-G.A.,Lalit Kumari,Ran Vijay Yadav Hon'ble Shamim Ahmed,J. Heard Sri Dharmendra Kumar Misra, learned counsel for the appellant, Ms. Lalit Kumari, learned counsel for the opposite party no.2 and Sri Ashok Kumar Singh, learned A.G.A.-I for the State and perused the entire record. This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 28.03.2023 passed by the learned Special Judge, S.C./S.T. Act / Additional District and Session Judge, Court No.2, Unnao in Case Crime No.345/2022, under Sections 376, 506 I.P.C. and Section 3(2)5 of S.C./S.T. Act, Police Station Makhi, District Unnao, whereby the bail application of the appellant has been rejected. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. The complainant is near and dear of the village gram pradhan, namely, Dinesh Singh, who is having enmity with the present appellant as the appellant has supported the opposition during pradhani election. Thus, the current pradhan had brought forward the complainant to lodge instant false case against the appellant. He further submits that the F.I.R. has been lodged after four months of incident without any plausible explanation and even after moving application under Section 156(3) Cr.P.C. He further submits that the allegation of rape, which were levelled in the statement of the prosecution recorded under Sections 161 and 164 Cr.P.C., got demolished after perusal of medical report, wherein it has clearly been stated by the doctor that no internal or external injury was found on the person of the prosecutrix and she was found to be of 42 years. He further submits that the doctor has not opined any opinion regarding forceful sexual assault in the medical examination report. He further submits that as per medical report, there was no discharge or blood seen at the time of examination. Thus, he submits that the medical report does not support the prosecution case and allegation of rape. He further submits that the villagers have given an application before the Superintendent of Police, Unnao on 04.02.2023, wherein it has been stated that due to a dispute with regard to installation of Eucalyptus Tress, the present F.I.R. has been lodged by the complainant on the instance of Dinesh Singh. He further submits that several cases have been filed against the instant appellant of similar nature wherein false allegations have been made upon him by the village pradhan. Several 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 is in jail since 27.01.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Sri Ashok Kumar Singh, learned A.G.A.-I for the State as well as Ms. Lalit Kumari, learned counsel for the opposite party no.2 have opposed the prayer for bail, however, they are unable to dispute the contentions raised by learned counsel for the appellant that no opinion was given by the doctor in the medical examination report regarding forceful sexual assault. After 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 the F.I.R. has been lodged after four months of incident without any plausible explanation and even after moving application under Section 156(3) Cr.P.C.; the allegation of rape, which were levelled in the statement of the prosecution recorded under Sections 161 and 164 Cr.P.C., got demolished after perusal of medical report, wherein it has clearly been stated by the doctor that no internal or external injury was found on the person of the prosecutrix and she was found to be of 42 years; the doctor has not opined any forceful sexual assault in the medical examination report and even there was no discharge or blood seen at the time of examination; the villagers have also given an application before the Superintendent of Police, Unnao on 04.02.2023, wherein it has been stated that due to a dispute with regard to installation of Eucalyptus Tress, the present F.I.R. has been lodged by the complainant on the instance of Dinesh Singh, the pradhan of village 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 trial court has failed to appreciate the material available on record. The order passed by the trial court is liable to be set aside. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 28.03.2023 passed by the learned Special Judge, S.C./S.T. Act / Additional District and Session Judge, Court No.2, Unnao in Case Crime No.345/2022, under Sections 376, 506 I.P.C. and Section 3(2)5 of S.C./S.T. Act, Police Station Makhi, District Unnao is hereby set aside and reversed. Let the appellant, Mithlesh Lodh be released on bail in the Case Crime No.345/2022, under Sections 376, 506 I.P.C. and Section 3(2)5 of S.C./S.T. Act, Police Station Makhi, District Unnao 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. It 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. The 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 :- 4.7.2024 Saurabh High Court of Judicature at Allahabad, Lucknow Bench High Court of Judicature at Allahabad, Lucknow Bench