Allowed

Sulendra Kumar Vishwakarma v. State of U.P.

Allahabad HC16 Nov 2018BAIL/42369/2018

Case brief

AI extract

What is this about?

Single judge allowed the second bail application, treating it as a first application due to non-prosecution in the first. The court granted bail based on the preliminary finding that the prosecutrix appears to be a major and her police statement exculpates the applicant, finding it a fit case for bail despite the grave charges.

What did the court decide?

Release of the applicant on personal bond and two sureties according to specified conditions.

Sulendra Kumar Vishwakarma Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2018)

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Court No. - 53

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42369 of 2018

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Applicant :- Sulendra Kumar Vishwakarma Opposite Party :- State Of U.P. Counsel for Applicant :- Ashok Kumar Mishra,Rakesh Chandra Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This is second bail application on behalf of Sulendra Kumar Vishwakarma in case crime No. 121 of 2018, under Section 363,366,376 I.P.C. and Section 3/4 POCSO Act, Police Station Chopan, District Sonebhadra. The first application for bail being Criminal Miscellaneous Bail Application No. 37324 of 2018 was dismissed for non prosecution by my order of 1st October, 2018. Thus, the present bail application is for all practical purposes a first application.

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Heard Sri Rakesh Chandra, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned A.G.A. alongwith Sri Ashutosh Diljan appearing for the State.

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The submission of the learned counsel for the applicant is that the prosecutrix, going by the medico legal estimation of her age, has been opined by a Board of Doctors including the Chief Medical Officer, Sonebhadra, through a certificate dated 31.05.2018, based on ossification test, to be aged about 17 years. It is submitted that giving the usual allowance of two years or even one to the benefit of the applicant, the prosecutrix would reckon to be a major. Learned counsel for the applicant has further invited the attention of the Court to the statement of the prosecutrix under Section 164 Cr.P.C. where she has named the applicant, Sulendra Kumar Vishwakarma in one part of the statement, of abducting her but towards the concluding part of the statement under Section 164 Cr.P.C. she has specifically said in words to the following effect:-

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" Surendra ka koi dosh nahi hai jo bhi dosh hai Deepak va unke mausa ka hai mai apne gharwalo ke sath rahna chahti hu aur kuch nahi kahna."

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It is submitted on the foot of the aforesaid exculpatory stand for the applicant, Sulendra Kumar Vishwakarma that the prosecution stands on very shaky ground and there is no prima facie evidence, against the applicant, of offences under Section 376 I.P.C. or 3/4 POCSO Act or for that matter any other offence.

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Learned A.G.A. has opposed the prayer for bail and submitted that in the statement under Section 164 Cr.P.C. there is an allegation against Sulendra Kumar Vishwakarma alongwith Deepak and their uncle of abducting her.

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Considering the overall facts and circumstances of the case, the nature of allegations, the gravity of offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix going by her medically estimated age is prima facie a major, and, the statement under Section 164 Cr.P.C. exculpates the applicant, Sulendra Kumar Vishwakarma prima facie, but without expressing any opinion on merit of the case, this Court, finds it to be a fit case for bail

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The bail application, accordingly, stands allowed .

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Let the applicant Sulendra Kumar Vishwakarma involved in case crime No. 121 of 2018, under Section 363,366,376 I.P.C. and Section 3/4 POCSO Act, Police Station Chopan, District Sonebhadra be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:

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i) The applicant shall not tamper with the prosecution evidence.

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ii) The applicant shall not threaten or harass the prosecution witnesses.

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iii) The applicant shall appear on the date fixed by the trial court.

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iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.

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v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.

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In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.

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Order Date :- 16.11.2018 BKM/-

Sulendra Kumar Vishwakarma v. State of U.P.

Case brief

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Sulendra Kumar Vishwakarma v. State of U.P.

Case brief

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What did the court decide?

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