Neutral Citation No. - 2023:AHC-LKO:51247

AFR

Reserved On :- 05.05.2023

Delivered On :- 03.08.2023

Court No. - 28

Case :- CRIMINAL APPEAL No. - 1129 of 2023

Appellant :- Okansh Kumar Singh

Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And

Another

Counsel for Appellant :- Umesh Chandra Tripathi,Chandra Bhushan

Pandey,Shambhunath Mishra

Counsel for Respondent :- G.A.,Chandan Srivastava,Yogesh

Somvanshi

Hon'ble Shree Prakash Singh,J.

1. Heard Sri Chandra Bhushan Pandey, Advocate assisted by Sri

Shambhu Nath Mishra, learned counsel for the appellant, Sri Aniruddh

Kumar Singh, learned AGA for the State and Sri Chandan Srivastava,

learned counsel for opposite party no. 2.

2. By means of the instant appeal, the appellant has assailed the

summoning order dated 04.10.2019 and the order of bailable warrant

dated 15.11.2019, passed by the Court of Special Judge (SC/ST Act),

Barabanki.

3. Brief facts of the case are that the informant lodged a First

Information Report against the present appellant and other accused

persons on 27.07.2017, alleging therein, the incident dated

16.05.2017, under Sections 376D, 342, 506 of IPC and 3(2)(v) of the

SC/ST (P.A.) Act, which was registered as Case Crime No. 224 of

2017, at P.S. Jaidpur, District Barabanki. After lodging the First

Information Report, the Investigating Officer recorded the statement

of the complainant/prosecutrix on 16.08.2017, wherein, the

prosecutrix stated that the appellant along with another co-accused,

namely, Anjani Verma committed rape upon her. The medical

examination of the complainant/prosecutrix was also got done in

District Women Hospital, Barabanki, on 17.08.2017 and as per the

medical examination report, the evidence of rape was found.

Thereafter, on 29.08.2017, the statement of the prosecutrix under

section 164 Cr.P.C. was also recorded, before the learned Trial Court,

in which the statement given under Section 161 Cr.P.C., was reiterated

and further, in her subsequent statement (Majeed Bayan) dated

08.12.2017, the prosecutrix stated that she has been used as a tool by

Digvijay Verma as she was asked to lodge a false and fabricated case

so as to mount pressure over the appellant, who is the witness in the

Case Crime No. 456 of 2017. Further plea is that the appellant was on

duty as Lecturer of Physics in an aided Government Inter-College,

namely, Shri Deshraj Narang Dayanand Inter College, Govind Nagar,

Walterganj, District Basti and he was present over there, in between

7:00 A.M. to 12:30 P.M. on 15^th and 16^th of May, 2017, i.e., the date,

when the incident is said to have taken place.

4.

Contention of the learned counsel for the appellant is that the

summoning order dated 04.10.2019 and the bailable warrant dated

15.11.2019, are not sustainable in the eyes of law as the learned Court

below has failed to appreciate the evidences, which were available on

record. He submits that after lodging of the First Information Report,

the Investigating Officer, when found no cogent piece of evidence to

substantiate the incident, submitted the Final Report and after delay of

20 months, the protest application of the appellant has been accepted.

5.

Further submission is that as per the medical examination of the

prosecutrix, there is no evidence of rape and that also does not support

the version of the prosecutrix. He added that no proper reasons have

been recorded while accepting the protest application and the same is

based on conjecture and surmises.

6.

Adding his arguments, he submits that the learned trial Court

has failed to appreciate the facts and evidences that the appellant was

working as Lecturer in a Government-Aided College, namely, Shri

Deshraj Narang Dayanand Inter College, Govind Nagar, Walterganj,

District Basti and on the date and time of the said incident, he was on

duty and furthermore, there is a clear cut evidence emerging out from

the statement of the prosecutrix, that th