Sushpendra @ Shashivendra Vs State of U.P. and Another

Court No. - 36

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25392 of 2020

Applicant :- Sushpendra @ Shashivendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Chandra Solanki,Rahul Chaudhary,Shivendra Kumar Gupta,Varsha Soni Counsel for Opposite Party :- G.A.

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Hon'ble Ali Zamin,J.

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Despite service, no one appears on behalf of opposite party no.2.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.

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The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.155 of 2020, under Sections 363, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Auraiya, District Auraiya.

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Learned counsel for the applicant submits that according to the FIR version on 28.2.2020 at about 8:00 p.m. daughter of the informant, aged about 13 years, was enticed away by the applicant and committed rape upon her throughout night. It is also submitted that in her statement recorded u/s 161 Cr.P.C. she has stated that she went along with applicant in a mustard field where she became unconscious and when she gained consciousness she found herself alone and during unconsciousness what happened with her she was not aware of it and in her statement u/s 164 Cr.P.C. she has stated that she went along with applicant to see exhibition from-where applicant took away her to his house and let her smelled his handkerchief because of which she became unconscious and when she gained consciousness she found herself alone and while going to her house, police met her on the way. As per pathological report, age of victim has been ascertained 16 years, in which, two years variation of either side is possible. He submits that in medical report, no spermatozoa was found. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that the applicant is languishing in jail since 1.3.2020.

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Per contra, learned A.G.A. has opposed the bail prayer by contending that, as per FIR, victim was minor at the time of incident and in statement u/s 161 Cr.P.C. she has levelled allegation of rape against applicant, therefore, he does not deserve any benevolence.

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Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, radiological age and statement of the victim, without expressing any opinion on the merit of the case, the applicant is entitled for bail, let the applicant- involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-

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(i) The applicant will not tamper with the evidence and pressurize the

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witnesses during trial.

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(ii) 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.

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(iii) 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 sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iv) 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, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(v) 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 sufficient 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.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 7.12.2020

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m.a.

Sushpendra @ Shashivendra v. State of U.P. and Another

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Sushpendra @ Shashivendra v. State of U.P. and Another

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