Shri Kant Tripathi, J. - (1.) COUNTER affidavit filed on behalf of the State is taken on record.
(2.) HEARD the learned counsel for the appellant and the learned A.G.A. for the State and perused the judgment and order dated 09.08.2011 passed by Additional Sessions Judge (ex -cadre), Court No. 2, Etah in S.T. No. 34 of 2010 (State Vs. Chhotey) Learned counsel for the appellant submitted that the prosecutrix was major, and, from the facts and circumstances of the case, she could be a consenting party. It was next submitted that no injury was found on the private part of the victim. It was also submitted that there was no resistance, therefore, the story of rape was concocted. Learned counsel for the appellant further submitted that the maximum sentence imposed on the appellant is of five year rigorous imprisonment. It was further submitted that the appellant was on bail during the trial and never abused the same and is in jail from 24.10.2009. It was further contended that in case the appellant was not released on bail, the appeal would, in due course, become infructuous as there was no prospect of the appeal being heard in near future due to heavy dockets.
(3.) IN my opinion, prima facie, the aforesaid submissions of the learned counsel for the applicants have substance, therefore, it is just and expedient to exercise the discretion in favour of the appellant.;