Allowed

Shiva Chauhan v. State of U.P.

Allahabad HC17 Jan 2019BAIL/2132/2019

Case brief

AI extract

What is this about?

The High Court considered a bail application in a rape and POCSO charge. Relying on the prosecutrix's exculpatory court testimony despite her inculpatory police statements, the Court viewed it as a fit case for bail.

What did the court decide?

The bail application is allowed. The applicant shall be released on executing a personal bond and furnishing two sureties in the like amount subject to standard conditions against tampering and harass

Shiva Chauhan Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2019)

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2132 of 2019

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Applicant :- Shiva Chauhan Opposite Party :- State Of U.P. Counsel for Applicant :- Moti Lal Chauhan Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This is an application for bail on behalf of the applicant, Shiva Chauhan in connection with Case Crime No. 91 of 2018, under Sections 363,366,354,504,506 and 120-B, 376-D I.P.C. and Section 3/4, 7/8 POCSO Act, P.S. Kotwali Deogaon, District Azamgarh.

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Heard Sri Moti Lal Chauhan, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A. alongwith Sri Avaneesh Shukla appearing for the State.

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The submission of the learned counsel for the applicant is that a perusal of the medico legal report dated 26.05.2018 submitted by the Chief Medical Officer, Azamgarh regarding the age of the prosecutrix, shows that she has been opined to be clearly above 18 years. The aforesaid estimation of age is based on an ossification test. It is submitted by learned counsel that going by the aforesaid estimation of the prosecutrix's age, she is clearly a major and, therefore, the provisions of the POCSO Act would not be attracted.

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Learned counsel for the applicant has submitted that though the prosecutrix has spoken inculpatory during investigation throughout, in the ongoing trial before the learned First Additional Sessions Judge, Azamgarh in S.T. No. 139 of 2018, she has spoken exculpatory in her dock evidence, saying that she was ravished by Durgvijay but the accused Sarvan and Shiva (the applicant) were not present there or did they ever

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ravish her or do anything to outrage her modesty. It is also said that their names were introduced at the behest of natives of the village by her brother. She has stood her cross examination by the State, defending her exculpatory stand so far as the applicant and co-accused Sarvan are concerned. The submission of the learned counsel for the applicant is that looking to the aforesaid state of evidence, there is no justification to detain the applicant further pending trial.

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Learned A.G.A. has opposed the prayer for bail.

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Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix has spoken exculpatory in favour of the applicant in her dock evidence, including cross examination, but without expressing any opinion on merits, 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 Shiva Chauhan involved in Case Crime No. 91 of 2018, under Sections 363,366,354,504,506 and 120-B, 376-D IPC and Section 3/4, 7/8 POCSO Act, P.S. Kotwali Deogaon, District Azamgarh 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

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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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It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence laid unaffected by anything said in this order.

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Order Date :- 17.1.2019 BKM/-

Shiva Chauhan v. State of U.P.

Case brief

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Shiva Chauhan v. State of U.P.

Case brief

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