Shri Kant Tripathi, J. - (1.) THE aforesaid two appeals arise of the same case crime number, therefore, they are being disposed of by a common order.
(2.) HEARD the learned Counsel for the Appellants and the learned A.G.A. for the Respondent and perused the judgment and order dated 13.03.2006 passed by the learned Additional Sessions Judge (Fast Track Court), Court No. 17, Bulandshahr in S.T. No. 1202 of 2004 (State v. Kanti and Ors.). Learned Counsel for the Appellants submitted that according to the medical report, the prosecutrix was aged about 17 years and there could a variation of two years either way, therefore, she could be more than 18 years on the date of the occurrence but the learned trial court considered the age of the prosecutrix on the lower side and treated her minor without any justification. It was next submitted that according to the prosecution story, the prosecutrix proceeded for urination early in the morning at 4.30 a.m. and at that time both the Appellants enticed her away forcibly but the prosecutrix did not raise any alarm nor made any protest. It was next submitted that the prosecutrix remained in the company of the Appellants for about two days and returned herself to her house and narrated the story that one of the Appellants went for making arrangements for food and the other had gone to attend the call of nature, therefore, she got opportunity to woo away from there clutches. It was further submitted that if the applicants had kept the prosecutrix forcibly there was no reason for the Appellants to move from the place elsewhere leaving her alone, therefore, the story of her confinement is concocted. It was next submitted that both the Appellants are in jail from October 2004, therefore, they have already served out six years and eleven months (a substantial portion of the sentence) towards the maximum sentence of ten years. It was further contended that in case the Appellants are not released on bail, the appeal would, in due course, become in fructuous as there is no hope of an early hearing of the appeal due to heavy dockets.
(3.) IN my opinion, prima facie, the aforesaid submissions of the learned Counsel for the Appellants have substance, therefore, it is just and expedient to exercise the discretion in favour of the Appellant.;