Criminal Appeal against bail rejection in rape and POCSO case. Bench allowed appeal, quashed AD sessions judge order due to witness hostility and unlikelihood of conviction soon.
Order rejecting bail quashed; appellant to be released on personal bond and two sureties subject to listed conditions.
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Court No. - 52
Case :- CRIMINAL APPEAL No. - 1750 of 2018
Appellant :- Pintoo Tiwari Respondent :- State Of U.P. And Another Counsel for Appellant :- Manoj Kumar Pandey Counsel for Respondent :- G.A.,Avinash Kumar Gautam
Hon'ble Rajul Bhargava,J.
Heard Sri Manoj Kumar Pandey, learned counsel for the appellant, Sri Avinash Kumar Gautam, learned counsel for the respondent No.2 and the learned A.G.A. for the State and perused the record.
This appeal has been filed against judgment and order dated 23.01.2018 passed by learned Additional Sessions Judge, Court No.1, Chandauli passed in Bail Application No. 9 of 2018 (Pintoo Tiwari Vs State of U.P.), arising out of Case Crime No. 221 of 2017, under Sections 452, 376 I.P.C., 3/4 of POCSO Act and Section 3(2)5 of SC/ST Act, P.S. Sakaldiha, District- Chandauli, by which bail plea of appellant has been rejected.
Learned counsel for the appellant submitted that order of the learned court below rejecting bail application of applicant-appellant is bad in law. It is submitted that the appellant has been falsely implicated in the present case and the victim is aged about 19 years. In the medical report of the victim no external or internal injury has been noted. Therefore, the medical report does not support the prosecution version of rape. It is further submitted that during trial the prosecutrix was examined as PW-1 and the first informant was examined as PW-2 and both of them have not supported the prosecution version and resiled from the statements recorded under Sections 161 & 164 Cr.P.C and they were declared hostile. Learned counsel for the appellant stated that the appellant is languishing in jail since 13.12.2017 and in view of the fact that the prosecutrix and the first informant have not supported the prosecution case the prospects of conviction are very remote and bleak. Learned counsel for the appellant further submitted that learned court below has also failed to consider that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned A.G.A. as well as learned counsel for the respondent No.2 have vehemently opposed the aforesaid submissions of learned counsel for the appellant and submitted that the victim is a minor girl aged about 15 years but he could not dispute that the prosecutrix has disclosed her age to be 19 years before the trial court and also has not supported the prosecution version.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case and nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal is allowed. The judgement and order dated 23.01.2018 passed by learned Additional Sessions Judge, Court No.1, Chandauli is set aside.
Let appellant-applicant- Pintoo Tiwari, be released on bail in aforesaid case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 11.9.2018 Vikas/-
2 issues framed by the court
Whether bail was legally maintainable despite serious gravity of offences.
Whether anticipatory discrediting of prosecution witnesses justified release.
5 provisions across 2 enactments
Pintoo Tiwari
State Of U.P.
Rajul Bhargava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
