# Haridas Yadav v. State of U.P. & Anr

- **Citation:** (2023) 11 ILRA 694
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-30
- **Case number:** Criminal Appeal No. 133 of 2022
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/haridas-yadav-v-state-of-u-p-anr-49391
- **Pages:** 7

## Headnote

Law-The
Scheduled
Castes
and
Scheduled Tribes (Prevention of Atrocities)
Act,1989-Section 14-A (2)---Criminal appeal against
impugned order rejecting the bail of the appellant under
Sections 452, 456, 376, 354, 504, 506 I.P.C. and Section
3(1) (dha), 3 (2) (5), 3(2) (5) a SC/ST Act---Prosecutrix
is living with her family members and her family is a joint
family and it is not possible for the appellant or any other
person to commit the alleged crime and they were not
aware about the said incident or no action has been
taken by those person or by the prosecutrix for last six
months, as alleged by the prosecutrix in the F.I.R., which
clearly establish that a totally improbable story has been
called out by the prosecutrix in the F.I.R. as well as in her
St.ment recorded under Section 161 and 164 Cr.P.C.;---
The present F.I.R. has been lodged only with the enmity
of the sitting Pradhan, as the sitting Pradhan of the
village is inimical to the appellant as the appellant is the
supporter to the other candidate, who contested
against
the
sitting
Pradhan---The
parties
appears to be consenting parties; further
considering the fact that appellant is in jail since
26.07.2021 and has now by done a substantial
period of detention----The learned court below
has failed to appreciate the material available on
record, the impugned order passed by the trial
court is liable to be set aside.

Appeal allowed.(E-15)

List of the cases referred-:

## Text

694 INDIAN LAW REPORTS ALLAHABAD SERIES
Bulandshahr in Case No.1503 of 2015
(Smt. Poonam vs. Abhijit @ Rahul and
others), under Sections 18, 19 and 20 of
Domestic Violence Act, Police Station
Kotwali Nagar, Bulandshahr as well as
order dated 6.7.2019 passed in Criminal
Appeal No.11 of 2019 is hereby dismissed
and impugned orders passed by courts
below are affirmed.

25. The Criminal Revision No.4105
of 2022 is partly allowed and the
impugned order dated 12.9.2022 passed by
learned Principal Judge, Family Court is
modified to the extent that the amount of
maintenance awarded from the date of
application to date of judgement to the tune of
Rs.4000/- per month is kept intact and affirmed
but instead of Rs.8,000/- per month awarded from
the date of judgment, is modified to the extent of
Rs.6,000/- per month, subject to other conditions
imposed in impugned judgment by Family Court.
----------
(2023) 11 ILRA 694
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.10.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 133 of 2022

Haridas Yadav ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Arun Sinha, Ram Chandra Singh, Siddhartha
Sinha, Smriti

Counsel for the Opposite Parties:
G.A., Vivek Singh

Criminal
Law-The
Scheduled
Castes
and
Scheduled Tribes (Prevention of Atrocities)
Act,1989-Section 14-A (2)---Criminal appeal against
impugned order rejecting the bail of the appellant under
Sections 452, 456, 376, 354, 504, 506 I.P.C. and Section
3(1) (dha), 3 (2) (5), 3(2) (5) a SC/ST Act---Prosecutrix
is living with her family members and her family is a joint
family and it is not possible for the appellant or any other
person to commit the alleged crime and they were not
aware about the said incident or no action has been
taken by those person or by the prosecutrix for last six
months, as alleged by the prosecutrix in the F.I.R., which
clearly establish that a totally improbable story has been
called out by the prosecutrix in the F.I.R. as well as in her
St.ment recorded under Section 161 and 164 Cr.P.C.;---
The present F.I.R. has been lodged only with the enmity
of the sitting Pradhan, as the sitting Pradhan of the
village is inimical to the appellant as the appellant is the
supporter to the other candidate, who contested
against
the
sitting
Pradhan---The
parties
appears to be consenting parties; further
considering the fact that appellant is in jail since
26.07.2021 and has now by done a substantial
period of detention----The learned court below
has failed to appreciate the material available on
record, the impugned order passed by the trial
court is liable to be set aside.

Appeal allowed.(E-15)

List of the cases referred-:

1. Kamal Vs St. of Har., 2004 (13) SCC 526

2. Dataram Singh Vs St. of UP & anr., reported
in (2018) 3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. Heard Ms. Smriti, the learned
counsel for the appellant as well as Sri
Ashok Kumar Singh, the learned A.G.A.
for the State-opposite party No. 1 and
perused the entire record.

3. Learned A.G.A. has filed counter
affidavit and in reply thereto learned
counsel for the appellant has filed rejoinder
affidavit.
11 All. Haridas Yadav Vs. State of U.P. & Anr.
695

4. Today when the case is taken up,
neither any counsel has appeared on behalf
of opposite party No. 2 nor counter
affidavit has been filed on her behalf.

5. This Court vide order dated
25.01.2022 issued notice to the opposite
party No.2. As per the office report dated
23.04.2022 notice has already been served
upon the opposite party No. 2. Sri Vivek
Singh, Advocate has put in appearance on
behalf of opposite party No.2, but has not
filed any counter affidavit till date. The
matter was listed more than ten times, but
no counter affidavit has been filed.
Thereafter, this Court vide order dated
17.07.2023 granted ten days time to file
counter
affidavit.
The
order
dated
17.07.2023 is being reproduced hereinbelow:

"Ms. Smriti, the learned counsel
for the appellant submits that she has
searched Shri Vivek Singh, the learned
counsel for the opposite party No. 2 but she
could not find her, even her mobile number
has also been put by him in block list.

The matter was listed several times
but the learned counsel for the opposite party
No. 2 neither appeared not filed any counter
affidavit.

Accordingly, Shri Vivek Singh, the
learned counsel for the opposite party No. 2
is granted ten days' and no more time to file
counter affidavit. Three days, thereafter, is
allowed to the learned counsel for the
appellant to file rejoinder affidavit.

Put up this case on 26.07.2023
peremptorily before appropriate Court."

Thereafter, on 28.08.2023 this
Court again granted time to file counter
affidavit. The order dated 28.08.2023 is being
reproduced herein-below:

"Ms. Smriti, learned counsel for
the appellant submits that in spite of several
attempts, she could not find Sri Vivek Singh,
learned counsel for the opposite party no.2 in
the premises of the High Court. She also
submits that she tried to search Sri Vivek
Singh, learned counsel for the opposite party
no.2 several times, however, she could not
know about his whereabouts. She further
submits that she may be given one more
opportunity to serve written notice upon him
about mentioning of the case to be taken up
out of turn.

The reason appears to be justified.

One more opportunity is being
given to learned counsel for the appellant to
serve a written notice upon Sri Vivek Singh,
learned counsel for the opposite party no.2
about mentioning of the case to be taken up
out of turn.

Sri Vivek Singh, learned counsel
for the opposite party no.2 is also directed
to appear in this case on the next date fixed
for argument.

Put up this case on 11.09.2023
peremptorily."

6. Learned counsel for the appellant
submits that Sri Vivek Singh, learned
counsel for the opposite party No.2 never
used to take written notice, so that the
matter be taken up. Thus, she has sent
notice by Speed Post on 04.09.2023 and on
05.09.2023. The copy of the Speed Post
receipts are being shown to the Court, in
which the said notice was already received.
The said track consignment as well as the
photocopy of the receipts of both the dates
are taken on record. Learned counsel for
696 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellants submits that as the matter
pertains to bail, thus the case may be finally
heard by this Court.

7. Sri Ashok Kumar Singh, Learned
A.G.A. submits that as the notice has
already been served by the Speed Post and
there is a track consignment that the notice
has already been served and the counsel is
avoiding to appear in this case, thus he
submits that the matter may be heard
finally.

8. In the above circumstances, this
Court has no option but to proceed for final
arguments to decide the present appeal.

9. The present criminal appeal under
Section 14-A (2) Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act has been preferred against the
impugned order dated 22.10.2021 passed
by the Court of Special Judge, SC/ST
(P.A.) Act Hardoi in Bail Application No.
2776/2021 in Case Crime No. 516/2021,
under Sections 452, 456, 376, 354, 504,
506 I.P.C. and Section 3(1) (dha), 3 (2) (5),
3(2) (5) a SC/ST Act, Police Station
Bilgram, District Hardoi, whereby the bail
application of the appellant has been
rejected.

10. Learned counsel for the appellant
submits that the appellant is innocent and
has been falsely implicated in the present
case, due to enmity and village party bandi.
No such incident took place as alleged by
the prosecution. She further submits that
the prosecution has made improbable story
inasmuch as according to the F.I.R. and
according
to
the
statement
of
the
proseuctrix recorded under Section 161 and
164 Cr.P.C., the appellant has committed
rape for the last six months while
threatening her and about a month before
the present incident, the prosecutrix has
informed to her family members about the
act of the appellant, but nobody of the
family members has lodged the F.I.R. or
has made any complaint to any authorities,
thus she submit that the parties appears to
be consenting, but only with the fear of the
society and of the family member, the
present case has been lodged against the
appellant.

11. Learned counsel for the appellant
further submits that as per the prosecution
the appellant has committed rape upon the
prosecutrix on 12.07.2021, but no F.I.R.
was lodged and again a false incident of
24.07.2021 has been introduced by the
prosecutrix, in which it is alleged that the
prosecutrix was allegedly molested by the
appellant and thereafter the present F.I.R.
was lodged against the appellant on
25.07.2021, thus there is a delay of more
than 12 days in lodging of the F.I.R. and no
proper and plausible explanation has been
given by the prosecutrix, that also falsify
the entire prosecution story.

12. Learned counsel for the appellant
submits that as a matter of fact, the
appellant has never entered into the house
of the prosecutrix in the night after jumping
the boundary wall of the prosecutrix and
false allegation has been made against the
appellant, as the house of the prosecutrix is
surrounded by many other houses of the
locality and it is not possible for the
appellant to enter into the house in the
night and if so happen then there must be
hue and cry by the family members of the
prosecutrix or by prosecutrix itself, but no
such happening took place.

13. Learned counsel for the appellant
further submits that it is not in dispute that
the prosecutrix is living with her family
11 All. Haridas Yadav Vs. State of U.P. & Anr.
697
members and her family is a joint family
and it is not possible for the appellant or
any other person to commit the alleged
crime and they were not aware about the
said incident or no action has been taken by
those person or by the prosecutrix for last
six months, as alleged by the prosecutrix in
the F.I.R., which clearly establish that a
totally improbable story has been called out
by the prosecutrix in the F.I.R. as well as in
her statement recorded under Section 161
and 164 Cr.P.C.

14. Learned counsel for the appellant
further submits that as per school record,
the prosecutrix is major girl, aged about
more than 19 years and her date of birth as
per school certificate is 20.08.2001, thus
she
is
major
and
she
knew
her
consequential very well.

15. Learned counsel for the appellant
further submits that the appellant is young
boy aged about 19-20 years and due to the
present case his entire career is at stake.
The present F.I.R. has been lodged only
with the enmity of the sitting Pradhan, as
the sitting Pradhan of the village is inimical
to the appellant as the appellant is the
supporter of the other candidate, who
contested against the sitting Pradhan. Thus, the
sitting Pradhan put forward the opposite party
No.2 for lodging of the present F.I.R. against the
appellant, giving her greed to get some financial
aid by the State Exchequer.

16 . Learned counsel for the applicant has
further placed reliance of Hon'ble Apex Court
judgments in the case of Kamal Vs. State of
Haryana, 2004 (13) SCC 526 and submitted that
the Hon'ble Apex Court was pleased to observe in
paragraph no. 2 of the judgment as under :-

"2. This is a case in which the
appellant has been convicted u/s 304-B of
the India Penal Code and sentenced to
imprisonment for 7 years. It appears that
so far the appellant has undergone
imprisonment for about 2 years and four
months. The High Court declined to grant
bail pending disposal of the appeal before
it. We are of the view that the bail should
have been granted by the High Court,
especially having regard to the fact that the
appellant has already served a substantial
period
of
the
sentence.
In
the
circumstances, we direct that the bail be
granted to the appellant on conditions as
may be imposed by the District and
Sessions Judge, Faridabad."

17. Learned counsel for the appellant
further submits that accused/appellant is
languishing in jail since 26.07.2021, and in
case the appellant is enlarged on bail, he
shall not misuse the liberty of bail and he
shall also fully cooperate with the trial. He
has further submitted that there is no
possibility of the appellant to intimidate or
pressurize the witnesses or any other
persons acquainted with the facts of the
present case.

18. For the aforesaid reasons, learned
counsel for the appellant submits that the instant
criminal appeal deserves to be allowed and the
order dated 22.10.2021 passed by the Court of
Special Judge, SC/ST (P.A.) Act Hardoi in Bail
Application No. 2776/2021 in Case Crime No.
516/2021, under Sections 452, 456, 376, 354, 504,
506 I.P.C. and Section 3(1) (dha), 3 (2) (5), 3(2)
(5) a SC/ST Act, Police Station Bilgram, District
Hardoi deserves to be set aside and consequently,
the accused/appellant deserves to be enlarged on
bail during pendency of the trial.

19. 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
698 INDIAN LAW REPORTS ALLAHABAD SERIES
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 having criminal
history of three cases except the present
case which has been explained in Para 7 of
the rejoinder affidavit and he is in jail since
26.07.2021 and that in the wake of heavy
pendency of cases in the Court, there is no
likelihood of any early conclusion of trial.

20. Per contra, Sri Ashok Kumar
Singh, learned A.G.A. has vehemently
opposed the prayer by submitting that there
is an allegation against the appellant in the
statement recorded under Section 161 and
164 Cr.P.C. as well as in the version of the
F.I.R., thus prima facie commission of
offence is made out against the appellant.
Therefore, the accused/ appellant is not
entitled to be enlarged on bail and the
instant criminal appeal deserves to be
dismissed. However, he has been unable to
dispute the other factual submissions
advanced by the learned counsel for the
accused/appellant.

21. 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, unlikelihood of early
conclusion of trial and also in absence of
any convincing material to indicate the
possibility of tampering with the evidence
and considering the fact that there appears
force in the argument of learned counsel for
the appellant
that
according to the
statement of the proseuctrix recorded under
Section 161 and 164 Cr.P.C., the appellant
has committed rape for the last six months
while threatening her and about a month
before
of
the
present
incident,
the
prosecutrix has informed to her family
members about the act of the appellant, but
nobody of the family members has lodged
the F.I.R. or has made any complaint to any
authorities; there appears force in the
argument of learned counsel for the
appellant that it is not in dispute that the
prosecutrix is living with her family
members and her family is a joint family
and it is not possible for the appellant or
any other person to commit the alleged
crime and they were not aware about the
said incident or no action has been taken by
those person or by the prosecutrix for last
six months, as alleged by the prosecutrix in
the F.I.R., which clearly establish that a
totally improbable story has been called out
by the prosecutrix in the F.I.R. as well as in
her statement recorded under Section 161
and 164 Cr.P.C.; there also appears force in
the argument of learned counsel for the
appellant that the present F.I.R. has been
lodged only with the enmity of the sitting
Pradhan, as the sitting Pradhan of the
village is inimical to the appellant as the
appellant is the supporter to the other
candidate, who contested against the sitting
Pradhan. Thus, the sitting Pradhan put
forward the opposite party No.2 for lodging
of the present F.I.R. against the appellant,
giving her greed to get some financial aid
by the State Exchequer; the parties appears
to
be
consenting
parties;
further
considering the fact that appellant is in jail
since 26.07.2021 and has now by done a
substantial period of detention 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
11 All. Haridas Yadav Vs. State of U.P. & Anr.
699
Court in the case of Kamal (supra) and
Dataram Singh Vs. State of UP and
another, reported in (2018) 3 SCC 22, this
Court is of the view that the learned court
below has failed to appreciate the material
available on record, the impugned order
passed by the trial court is liable to be set
aside.

22. Accordingly, the appeal is
allowed. Consequently, the order dated
22.10.2021 passed by the Court of Special
Judge, SC/ST (P.A.) Act Hardoi in Bail
Application No. 2776/2021 in Case Crime
No. 516/2021, under Sections 452, 456,
376, 354, 504, 506 I.P.C. and Section 3(1)
(dha), 3 (2) (5), 3(2) (5) a SC/ST Act,
Police Station Bilgram, District Hardoi is
hereby reversed and set aside.

23. Let the appellant, Haridas
Yadav, be enlarged on bail in Case Crime
No. 516/2021, under Sections 452, 456,
376, 354, 504, 506 I.P.C. and Section 3(1)
(dha), 3 (2) (5), 3(2) (5) a SC/ST Act,
Police Station Bilgram, District Hardoi
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
700 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

24. 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.

25. The trial court is also directed to
expedite the trial of the aforesaid case,
within a period of one year from today, 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.

----------
(2023) 11 ILRA 700
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.11.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 766 of 2000

Phullan & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Imtiyaz Murtaza, Sumit Kumar Srivastava

Counsel for the Opposite Party:
G.A.

Criminal Law-The Indian Penal Code,1860Sections 307 & 34--- Learned trial court found the
case proved on the basis of medical evidence, site
plan and oral evidence of injured. FIR is prompt.
Enmity is admitted. Gunshot injury was found, which
is proved by doctor. Therefore, learned trial court
found the accused-appellants guilty and convicted
them. The conclusion of learned trial court does not
suffer with any infirmity or lacuna. The contradictions
are minor in nature and the prosecution proved the
case beyond reasonable doubt, hence no merit is
found in the appeal and the appeal is liable to be
dismissed--- Trial court has power to find the accused
guilty for lesser offence even if charge is made for
major offence, but when the charge was framed for
lesser offence the court cannot convict the accused
for major offence without alteration of charge. Hence
when the prosecution has proved prosecution version
regarding major offence under section 307 IPC and it
is proved by the evidence that all the appellants acted
with common intention then trial court rightly
convicted appellants under section 307 IPC read with
section 34 IPC. Hence there is no illegality in the
judgment of trial court, if the accused-appellants are
convicted under section 307 read with section 34 IPC.

Appeal dismissed. (E-15)

List of the cases referred-:

1. Maqbool Vs St. of A.P., AIR 2011 SC 184

2. U.O.I. Vs Prakash P. Hinduja AIR 2003 SC 2612

3. Amar Singh Vs Balwinder Singh, AIR 2003 SC 1164

4. Sambu Das Vs St. of Assam, AIR 2010 SC 3300

5. Ram Bihari Yadav Vs St. of Bihar", AIR 1998 SC
1850,

6. Paras Yadav Vs St. of Bihar", AIR 1999 SC 644,

7. Dhanraj Singh Vs St. of Punj., AIR 2004 SC
1920,

8. Ram Bali Vs St. of U.P. AIR 2004 SC 2329

(Delivered by Hon'ble Mrs. Renu Agarwal,
J.)

1 Heard Sri Sumit Kumar Srivastava,
learned counsel for the applicants, Sri Ajay
Kumar Srivastava, learned AGA for the
State and perused the material available on
record.