High Court
Case Details
Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38911 of 2022 Applicant :- Krishna Kumar @ Kishan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajay Kumar,Nirma Mishra,Sanjeev Kumar Pandey Counsel for Opposite Party :- G.A.,Suneel Kumar Mishra Hon'ble Rajiv Gupta,J.
Facts
Heard learned counsel for applicant, learned counsel for first informant and learned AGA for the State and perused the record. Applicant- Krishna Kumar @ Kishan seeks bail in Case Crime No. 20 of 2022, under Section 363, 366, 376 IPC and section 3/4 of POCSO Act., P.S. Gopiganj, District- Bhadohi.
Legal Reasoning
Learned counsel for the applicant has further submitted that the applicant is in jail since 31.3.2022 and has no criminal history to his credit. There is no chance of applicant fleeing away from the judicial process or tampering the evidence as such prima facie a case for bail is made out. Per contra, learned AGA as well as learned counsel for first informant has opposed the prayer for bail, but could not dispute the aforesaid facts. Having considered the rival submissions made by learned counsel for both the parties and on perusal of record, it is evident that during course of trial the statement of victim has been recorded in which she has stated that she is 19 years of age. She has further stated that her age mentioned in the School Register has been disclosed by her father. Further in her statement she has stated that she has married with the applicant out of her own free will and consent. However, she used to live separately from her husband and no physical relations has been made between them. She has even refused to under go medical tests. On her attention being drawn to her statement shown to be recorded under section 164 Cr.P.C. she has categorically stated that under the threat of her father she had given such statement and not out of her own free will and consent and the said statement is incorrect. On the basis of the said statement the victim has been declared hostile. In her cross examination she has stated that the applicant has not taken her forcibly but she had gone with him out of her own free will and consent and she had fallen in love with the applicant and she wants to live with the applicant and does not want to stay with her parents. The applicant is in jail since 31.3.2022 and has no criminal history to his credit. There is no chance of applicant fleeing away from the judicial process or tampering the evidence. In the backdrop of the said facts and circumstances prima facie a case for bail is made out. Let applicant- Krishna Kumar @ Kishan be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following conditions :- (1). The applicant 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. (2). The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against him under Section 229- A IPC. (3). In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant 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 IPC. (4). The applicant shall remain present, in person, 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 the opinion of the trial court, absence of the applicant is deliberate or without sufÏcient 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. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted. In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. The bail application is accordingly allowed. Order Date :- 29.11.2022 R Digitally signed by RAM ASARE MORYA Date: 2022.11.29 16:35:23 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive. Learned counsel for the applicant has next submitted that during course of trial the statement of victim has been recorded in which she has stated that she is 19 years of age. She has further stated that her age mentioned in the school Register has been disclosed by her father. Further in her statement she has stated that she is already married to the applicant out of her own free will and consent. However, she used to live separately from her husband and no physical relations has been made between them. She has even refused to under go medical tests. On her attention being drawn to her statement shown to be recorded under section 164 Cr.P.C. she has categorically stated that under the threat of her father she had given such statement and not out of her own free will and consent and the said statement is incorrect. On the basis of the said statement the victim has been declared hostile. In her cross examination she has stated that the applicant has not taken her forcibly but she had gone with him out of her own free will and consent and she had fallen in love with the applicant and she wants to live with the applicant and does not want to stay with her parents.