Pankaj Singh vs State of U.P.

Vinod Prasad, J.—Heard Sri Manoj Yadav, learned Counsel for the Appellant and the learned A.G.A.

Admit.

Summon the trial court record.

The Appellant has been convicted in the S.T. No. 86 of 2008(State v. Chandra Shekhar Singh and Ors. S.T. No. 86 of 2008) by the Additional Sessions Judge / F.T.C. No. 3, Jalaun at Orai for offences under Sections 363, 366, 376 I.P.C. and the maximum sentence awarded to him is 8 years R.I. with fine. The rest of the sentences are lesser sentences.

It is contended on the merits of the matter that the impugned judgment is an unfair judgment which has been delivered without excercise of proper judicial aooreciation. Learned Counsel for the Appellant points out following facts in support of his aforesaid contention:

(I) Although it was a case of gang rape where victim was taken from her house by Chandra Shekhar and another co-accused Dharmendra Singh, (since acquitted) and albeit Chandra Shekhar and Dharmendra two persons were alleged to have committed rape upon her along with Appellant yet no charge u/s 376(2)(g) I.P.C. was framed by the trial Judge. Trial judge did not understood the prosecution allegations and conducted the whole prosecution without applying his mind.

(II) Although during the investigation as well as during the trial, the victim P.W. 2 clearly stated that Chandra Shekhar enticed her and brought her to the field of Hussain where all three accused (Chandra Shekhar, Pankaj Singh and Dharmenra Singh) dragged her to the field of Naresh where all the three accused outraged her chastity and thereafter pushed her to the culvert where she was drawn in a jeep and was taken away with further allegations that all the three persons repeatedly outraged her modesty yet no charge of gang rape was framed even during the trial.

(III) Although during the trial, it was specific case of the victim as is referred to at internal page 13, 25 and 26 of the impugned judgment, there was similar allegations against all the accused, yet the trial judge without any plausible reason and distinctive feature, acquitted two of the accused including Chandra Shekhar, who had enticed her from her house.

(IV) The trial judge disbelieved the statement of the victim as is clear from page 26, first paragraph of the impugned judgment, yet he convicted the Appellant without any reason.

(V) The trial judge, distinguished the case of the Appellant from the acquitted accused without any basis and application of mind.

Learned AGA also could not justify the impugned judgment and had to concede that going by the judgment, trial judge has passed that judgment which cannot be sustained in law as it smacks of essences of wholly unwarranted discretion and non exercise of judicial mind, which is not justified judicially.

Without expressing any opinion on merit, let the Appellant namely Pankaj Singh be enlarged on bail on their furnishing a personal bond of Rs. 1 lac with two sureties in the like amount to the satisfaction of trial Judge concerned in the aforesaid trial. As soon as bail bonds and surety bonds are furnished, photocopy of the same are directed to be transmitted to this Court forthwith by trial judge concerned to be kept on the record of this appeal.

The fine awarded on the Appellant shall also remain stayed pendent lit this appeal.