Harveer vs State of U.P.

Naheed Ara Moonis, J.—Heard learned Counsel for the Appellant and learned A.G.A. for the State. Admit.

Summon the lower court record.

A prayer for bail has been made in this criminal appeal, which has been filed against a judgment and order dated 1.4.2011, passed by Additional Sessions Judge, Anoopsahar, Bulandshahar in Session Trial No. 681 of 2009 State v. Harveer, arising out of case crime No. 389 of 2009, u/s 354 IPC, P.S. Anoopsahar, District Bulandshahar, convicting and sentencing the Appellant, u/s 354 IPC for two years rigorous imprisonment with a fine of Rs. 2,000/-, with default stipulation.

Initially a first information report was lodged by the complainant u/s 354 IPC with the allegation that the Appellant had tried to outrage the modesty of his minor daughter aged about 16 years when she had gone out to ease herself in the intervening night of 4/5.10.2008 at about 11:00 pm. The charges were framed under Sections 376, 506 IPC.

It is submitted by the learned Counsel for the Appellant that the Appellant had been implicated falsely and the charges have not been found true, therefore he was acquitted under Sections 376, 506 IPC and the Appellant has been released on interim bail for a period of one month. The Appellant has also deposited the fine as awarded by the trial court. The Appellant was on bail during the trial and had never misuse the liberty of bail. There is no likelihood of early hearing of the appeal in near future. In case, he is enlarged on bail he will not misuse the liberty of bail.

Per contra the learned AGA has opposed the prayer of bail of the Appellant and submitted that the medical evidence and the statement of the prosecutrix fully support the charges against the Appellant, yet the Appellant had been acquitted by the court below from the charge under Sections 376, 506 IPC and convicted the Appellant for two years imprisonment only u/s 354 IPC with a fine of Rs. 2,000/-.

Having considered the submissions made by the learned Counsel for the Appellant as well as the learned AGA and looking to the facts and circumstances of the case, without expressing any opinion on the merits of the case, the prayer for bail of the Appellant is allowed.

Let the Appellant, Harveer, convicted and sentenced in Session Trial No. 681 of 2009, State v. Harveer, arising out of case crime No. 389 of 2009, u/s 354 IPC, P.S. Anoopsahar, District Bulandshahar, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.

However, from the perusal of judgment and order impugned it is quite evident that the statement of the prosecutrix who was a minor girl at the time of incident was subjected to rape by the Appellant against her wishes. The medical evidence also supports the charge u/s 376, 506 IPC. The Appellant had also threatened the victim and the rape was committed at pistol point, yet the court below has brushed aside the evidence and the Appellant has been acquitted from the said charges, therefore in exercise of power u/s 386(c) Code of Criminal Procedure, a notice is being issued to the Appellant, as to why the Appellant may not be convicted for an offence under Sections 376, 506 IPC, as the court below has not passed any specific order acquitting the Appellant u/s 376, 506 IPC and without framing of charge u/s 354 IPC the Appellant has been convicted for the same.

In view of the above, fixing 16th May, 2011 for the appearance of the Appellant. On that date the Appellant shall appear in person. The Chief Judicial Magistrate, Bulandshahar is directed to ensure the presence of the Appellant before this Court on 16.5.2011.

List on 16.5.2011.