Shri Kant Tripathi, J. - (1.) HEARD the learned Counsel for the Appellant and the learned A.G.A. for the Respondent and perused the judgment and order dated 09.08.2011 passed by the learned Additional Sessions Judge, Court No. 12, Bareilly in S.T. No. 528 of 2007 (State v. Surajpal Singh and Anr.). Admit. Summon lower court record.
(2.) LEARNED Counsel for the Appellant submitted that the Appellant was on bail during the trial and never abused the same and is in jail from 09.08.2011. The maximum sentence imposed on the Appellant is of seven years. It was further contended that in case the Appellant is not released on bail, the appeal would, in due course, become infructuous as there is no hope of an early hearing of the appeal due to heavy dockets. It was next submitted that the prosecutrix was aged about 19 years on medical examination, therefore, she was major. It is alleged that the father of the Appellant took the prosecutrix on his motorcycle and handed over to the applicant with whom the prosecutrix lived for about fifteen days and travelled to different places. It was next submitted that the prosecutrix did not raise any alarm or resistance during the period she travelled with and remained in the company of the Appellant. It was further submitted that keeping in view the facts and circumstances of the case, the prosecutrix was a consenting party and she changed her attitude due to pressure of her family members. It was next submitted that in the case of Shyam and Anr. v. State of Maharashtra, 1995 SCC (Cri) 851, the Apex Court found the prosecutrix as a consenting party in the similar circumstances. While reiterating this principle, the Apex Court in the case of Krishan Kumar Malik v. State of Haryana : (2011) 7 SCC 130 found that the prosecutrix had travelled certain distance in the Maruti Van after her alleged abduction but did not raise any alarm for help and, therefore, it was held that her evidence was shaky and untrustworthy.
(3.) IN my opinion, prima facie, the aforesaid submissions of the learned Counsel for the Appellant have substance, therefore, it is just and expedient to exercise the discretion in favour of the Appellant.;