Court No. - 25 Case :- CRIMINAL APPEAL No. - 2837 of 2008 Petitioner :- Umesh Prasad @ Umesh Chandra Respondent :- State Of U.P. Petitioner Counsel :- Anil Kumar Tripathi Respondent Counsel :- G.A. Hon'ble Abdul Mateen,J.
Hon’ble Yogendra Kumar Sangal,J.
First Bail Application No. 53809 of 2010.
Appeal called out. Umesh Prasad alias Umesh Chandra, convict of
Sessions Trial No. 315 of 2008 (District Unnao) is present in person.
He has been convicted and sentenced under Sections 376 (2) (Chha)
IPC and has been brought from District Jail, Lucknow for the reason
that on the last date i.e. 09.07.2010 one Shri Dinesh Chandra, claiming
himself to be brother of the convict, intended to argue the matter with
respect to consideration of prayer for bail in pending appeal, but since it
was not confirmed that Dinesh Chandra was/is brother of the convict
and there was no one to identify him, as such, notice was issued to
convict Umesh Prasad alias Umesh Chandra for his appearance before
this Court.
Heard convict Umesh Prasad alias Umesh Chandra, learned Additional
Government Advocate and Shri Piyush Kumar Singh, learned counsel
appearing for the complainant.
We have gone through the judgment as well as record of lower court.
It comes out that on 16.01.2008 an FIR was lodged by one Kaushal
Kishore against the present appellant and other persons alleging therein
that his daughter Kumari Neelam Shukla, aged about sixteen years, has
been subjected to gang rape on 12.01.2008, but FIR was not lodged by
him due to shame and when the accused persons again tried to molest
her on 16.01.2008 he lodged the FIR. Medical examination of the
prosecutrix was conducted on 17.01.2008 very next day wherein her
hymen was found to be old torn and vagina was found admitting two
fingers easily. For determination of age of the prosecutrix X-ray was
conducted, report of which dated 23.01.2008 indicates her age to be
seventeen years.
We have gone through statement of PW-1 Kumari Neelam Shukla
where she has stated that she was taken by the present appellant along
with two other accused persons and was subjected to rape by them.
It has been argued by Umesh Prasad alias Umesh Chandra that on
12.01.2008 it was holiday, which has been refuted by the learned
counsel for the complainant by submitting that it was not holiday,
rather it was written on the college board that due to election since
teachers are not available, there will be no class. The prosecutrix while
being examined as PW-1 has stated that on 12.01.2008 she has gone to
the college from where she was taken to Achalganj, Hadaha by the
accused persons where she had been subjected to rape by them in a
room. It is surprising that a girl, as per prosecution case aged about
seventeen years, is subjected to gang rape and she does not receive any
injury and as per medical report her hymen was found to be old torn and
her vagina was found admitting two fingers easily, which clearly goes
to indicate the entire story set up by the prosecution.
No doubt, it is well settled law promulgated by the apex Court that
statement of prosecutrix herself is sufficient for conviction of an
accused, provided it gets support of the medical evidence, but in the
present case, prima-facie at this juncture without commenting any
further on merit of the case, we find that the medical evidence does not
support the statement of PW-1 (prosecutrix) and there is a dent upon the
prosecution version. Apart from it, we find that in the statement of
appellant recorded under Section 313 Cr.P.C. the appellant has stated
that he has been falsely implicated due to mala-fide intention of
Principal of the College against whom he made several complaints of
which inquiry was conducted and the prosecutrix happens to be
daughter of Kaushal Kishore, who is a peon of the Principal.
Taking into consideration overall aspects of the matter, we find that at-
least case of bail at this juncture is made out in pending appeal, which is
of the year 2008 and there is no likelihood of it being heard and decided
in near future.
Accordingly, we direct that appellant Umesh Prasad alias Umesh
Chandra, convict of the aforesaid sessions trial, be taken back to District
Jail, Lucknow from where he shall be released on bail on his furnishing
a personal bond and two sureties each in the like amount to the
satisfaction of the Chief Judicial Magistrate concerned.
Realization of half of the fine is stayed and remaining half of the fine
shall be deposited by the appellant within one month from the date of
his release on bail.
Chief Judicial Magistrate, Unnao is directed to transmit to this Court
photocopies of bond and sureties filed by the appellant to be preserved
in the record maintained here.
Let a copy of this order be sent to Chief Judicial Magistrate,
Lucknow/Unnao, who shall ensure that the appellant is released on bail,
if he submits personal as well as surety bonds to their satisfaction.
Order Date :- 22.7.2010
Chauhan/-