Court No.
- 76
Case :- CRIMINAL APPEAL No. - 5119 of 2021
Appellant :- Suresh Yadav @ Suresh Kumar Yadav
Respondent :- State of U.P. and Another
Counsel for Appellant :- Awadhesh Kumar Sharma,Sharda
Vishwakarma,Swati Agrawal Srivastava
Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
(Criminal Misc. Bail Application No.... of 2021)
Heard Ms. Swati Agrawal Srivastava, learned counsel for the
appellant as well as learned A.G.A for the State and perused the
record.
This criminal appeal under Section 14 A (2) of the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989
(in short "S.C./S.T. Act") has been filed assailing the legality
and validity of the impugned order dated 21.10.2021 passed by
the learned Special Judge (SC/ST Act)/Additional Sessions
Judge, Allahabad while rejecting the Bail Application No.6263
of 2021 (State vs. Dinesh Yadav @ Michai Yadav and others) in
Case Crime No.780 of 2021, under Sections 328, 343, 376-D,
504, 506 I.P.C. and Section 3(2)V of the S.C./S.T. Act, Police
Station-Naini, District-Prayagraj.
There are two connected appeals having Criminal Appeal No.
4767 of 2021 and Criminal Appeal No. 5119 of 2021.The
genesis of both these two criminal appeals are from one and
same F.I.R. and for the sake of brevity both the appeals are
decided by a common order.
The instant criminal appeal No.5119 of 2021 is targeted against
the judgement and order passed by Special Judge (SC/ST Act)/
Addtional Sessions Judge, Allahabad by rejecting Bail
Application No.6263 of 2021 on 21.10.2021 whereas in
another criminal appeal bail of Suresh Yadav @ Suresh Kumar
Yadav was rejected vide Bail Application No. 6263 of 2021
was rejected on the same day i.e. 21.10.2021. Both of them are
accused of Case Crime No. 780 of 2021, under Sections 328,
343, 376-D, 504 and 506 I.P.C. and 3(2)V of SC/ST Act, Police
Station Naini, District Prayagraj and both of these appellants
are behind the bar since 11.10.2021.
The counter affidavit has been filed by the State. Learned
counsel for the appellant is not proposing to file any rejoinder
affidavit. The order-sheet indicates that the notices were duly
served upon opposite party no.2 personally way back in the
month of December, 2021 but neither they have engaged any
counsel nor have filed any counter affidavit to represent their
case. Taking the service to be sufficient upon them with the help
& aid of learned AGA, Court is proposing to decide both the
appeals by a common order.
Learned counsel for the appellant drawing the attention of the
Court to the F.I.R. lodged by Neha Bhartiya, who herself is the
victim. As per the allegations made in the F.I.R. on 10.10.2021
for the incident said to have been taken place on 04.10.2021
against Suresh Yadav, Rakesh Yadav and Mirchai Yadav. All the
three named accused persons are the real brothers and are the
sons of Baddu Lal Yadav. The genesis of the with the
prosecutrix went along with her mother to a temple. Her mother
was about ten steps ahead of her. All of sudden in a Bolero Car
she was kidnapped by some unknown persons, who made her
unconscious and thereafter confined her into a room. They used
to administer her liquor and misbehaved with her time and
again. This process had continued for another period of one
week and thereafter left her in a abandon condition near the
railway crossing. She has positively accused all three named
persons for committing gang rape upon her.
Learned counsel for the appellant submits that the victim/
informant and her mother are in habit of making such type of
frivolous F.I.Rs. On the earlier occasion the mother of the
victim Smt. Baby, has lodged one F.I.R. No. 470 of 2021, on
25.06.2021, under Sections 365, 452, 323, 504, 506, 392 I.P.C.
and Section 3(2)(Va) of SC/ST Act against Vinod Yadav, Milan
Yadav and Ravi Prakash Yadav, but the police after
investigation has submitted a final report on 10.08.2021.
Coming to the text of the present case that all three named
accused persons are real brothers, who have been charged for
committing gang rape. Levelling such a serious allegation the
lady has conveniently shuns away and never admitted for any
medical examination so as to establish the fact of gang rape
upon her. This is the serious matter wherein the attending
circumstances, it is required to establish the authenticity of the
allegations. It is mandatory and obligatory on the part of the
victim to get herself medically examined so as to substantiate
the allegation of rape. It is not her choice to admit or not to
admit for the medical examination. As per annexure No. SA-1
of the supplementary affidavit she has positively denied to get
her medical examined done. In her statement recorded under
Section 161 Cr.P.C. first informant states that she is a married
lady but she herself deserted her husband on account of ill
treatment extended by her husband. Hon'ble Apex Court in its
various pronouncements have clearly opined that it is risky to
blindly rely upon victims 161 and 164 Cr.P.C. statements
without having any supporting, independent documentary proof
or any other confidence generating material collected during
investigation.
Learned A.G.A. has vehemently opposed the prayer for bail by
making a mention that this a case of gang rape where the
dignity and honour of an lady has been outraged by the named
accused persons.
After levelling such a serious allegation against three real
brothers, contentions raised that it is highly improbable that
three real brothers could commit a gang rape with a lady,
coupled with the fact that she has never admitted for any
medical examination so as to connect the allegation of rape
upon her.
Keeping in view the nature of the offence, evidence, complicity
of the accused, submissions of the learned counsel for the
parties, the period of detention already undergone by the
appellant and also without expressing any opinion on merits of
the case, I am of the view that the appellant has made out a case
for bail.
Let the appellant- Suresh Yadav @ Suresh Kumar 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 with the
following conditions which are being imposed in the interest of
justice:-
(i) THE APPELLANT WOULD FULLY COOPERATE IN
THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND
ANY TEMPERING OR WILLING TACTICS ON THE PART
OF THE APPELLANT TO DELAY THE TRIAL WOULD
WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO
THE EFFECT THAT HE SHALL NOT SEEK ANY
ADJOURNMENT ON THE DATE 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.
(iii) THE APPELLANT SHALL REMAIN PRESENT
BEFORE THE TRIAL COURT ON EACH DATE FIXED,
EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN
CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE,
THE TRIAL COURT MAY PROCEED AGAINST HIM
UNDER SECTION 229-A IPC.
(iv) IN CASE, THE APPELLANT MISUSE THE LIBERTY
OF BAIL DURING TRIAL AND IN ORDER TO SECURE
HIS PRESENCE PROCLAMATION UNDER SECTION 82
CR.P.C., MAY BE ISSUED AND IF 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 IPC.
(v) THE APPELLANT SHALL REMAIN PRESENT, IN
PERSON, BEFORE THE TRIAL COURT ON DATES FIXED
FOR (1) OPENING OF THE CASE, (2) FRAMING OF
CHARGE AND (3) 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.
However, it is made clear that any wilful violation of above
conditions by the appellant, shall have serious repercussion on
his bail so granted by this court.
Keeping in view that though the complainant belongs to the
scheduled caste community and as per arguments of learned
counsel for the complainant that the accused/appellant who
belongs to a higher caste, after his release, may create all sorts
of impediments in the smooth trial and may extend allurement
and threats to the informant, his family members as well as
other witnesses, thus, it is directed that in such eventuality, all
these complaints may be raised by the complainant before the
Superintendent of Police concerned who would examine
objectively after having reports from his agencies at the earliest
with regard to threat prospective of complainant and his family
members and use his own discretion in the matter, if it
desirable, then during trial may provide security to complainant
and his near family members.
Accordingly, the appeal succeeds and the same stands
ALLOWED. Impugned order dated 21.10.2021 passed by the
learned Special Judge (SC/ST Act)/Additional Sessions Judge,
Allahabad, is hereby set aside.
Order Date :- 13.1.2022/Abhishek Singh
