Allowed

Shiv Charan Gautam v. State of U.P. Thru.Prin.Secy. Home and 3 Others

Allahabad HC22 Sept 2022/10848/2022

Case brief

AI extract

What is this about?

Bail application allowed for applicant charged under IPC Sections 363, 366, 376 and POCSO. Court found contradictions in victim statements and decided it was a fit case for bail without expressing opinion on merits.

What did the court decide?

Applicant released on bail subject to furnishing personal bond, two sureties, and undertaking not to tamper with witnesses or seek unnecessary adjournments.

Shiv Charan Gautam Vs State of U.P… — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 29

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10848 of 2022

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Applicant :- Shiv Charan Gautam Opposite Party :- State Of U.P. Thru.Prin.Secy. Home And 3 Others

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Counsel for Applicant :- Naveen Kumar Pandey,Neeraj Pandey

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Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Shri Naveen Kumar Pandey, learned counsel for the applicants, Shri Ravish Chandra Mishra, learned A.G.A. for the State and perused the material on record.

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The present bail application has been filed on behalf of applicant Shiv Charan Gautam under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 89 of 2022 for offence punishable under Sections 363, 366, 376 of the Indian Penal Code, Section 3/4 Protection of Children From Sexual Offences, 2012 registered at Police Station Khargupur, District Gonda during pendency of the trial.

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Brief facts of the case are that the First Information Report dated 23.05.2022 has been lodged by the father of the victim against the applicant, mother and two brothers of the applicant under sections 363, 366, 376 of I.P.C. stating therein on 08.05.2022 at 12.00 midnight, the applicant (son-in-law) with the help of the other accused persons enticed away his minor daughter aged about 17 years from the house of the first informant.

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After lodging of the first information report, statement of victim under Section 161 Cr.P.C. was recorded on 23.05.2022, Statement under Section 164 Cr.P.C. 18.06.2022 and she denied her internal Medical examination on 17.06.2022. As per opinion of the doctor, age of the victim is 18 to 19 years at the time of the alleged incident. After recording the statement of the victim as well as other witnesses, charge-sheet has been submitted against the applicant only on 16.08.2022 and investigating officer exonerated the other accused persons.

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Learned counsel for the applicant submits that the applicant, brother-in-law of the victim, is innocent and has been falsely implicated in the present case due to ulterior motive. It is

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further submitted that as per medical examination, no external injury was found on the person of the victim. It is further submitted that as per statement of the victim recorded under section 164 Cr.P.C., there is no allegation of the offence punishable under sections 363, 366, 376 of I.P.C. It is further submitted that as per statement of the victim recorded under section 164 Cr.P.C., in which she stated that she had gone to Mumbai to meet daughter of her aunt (Mausi) at Mumbai by train. It is further submitted that the victim denied her internal medical examination. It is further submitted that as per Radiological report, age of the victim is 18 to 19 years at the time the alleged incident. It it further submitted that there is material contradiction between the statement of victim recorded under section 161 Cr.P.C. and 164 Cr.P.C.,

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He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is languishing in jail since 13.06.2022.

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Per contra , learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

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After considering the facts of the present case it prima facie appears that;

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(a) the applicant is brother-in-law of the victim;

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(b) as per statement of the victim recorded under section 161 Cr.P.C., there is no allegation of the offence punishable under sections 363, 366, 376 of I.P.C.,;

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(c) as per statement of the victim recorded under section 164 Cr.P.C., in which she stated that she had gone to Mumbai to meet the daughter of her aunt (Mausi) on her own sweet will and volition ;

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(d) as per radio-logical report of the victim, age of the victim is 18 to 19 years at the time of the alleged incident;

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(e) there is material contradiction between the statement of victim recorded under section 161 Cr.P.C. and 164 Cr.P.C., it

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would not be appropriate to discuss the same at this stage.

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It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

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Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308 , Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 , Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598 , Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118 , the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

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Let applicant, Shiv Charan Gautam be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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(i) 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 them from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

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(iii) 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 of Cr.P.C.

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(iv) 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 the trial court.

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(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

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The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

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It is made clear that the observations made in this order are 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. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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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.

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Order Date :- 22.9.2022

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aks

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Digitally signed by ANIL KUMAR SRIVASTAVA Date: 2022.09.26 16:50:07 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Shiv Charan Gautam v. State of U.P. Thru.Prin.Secy. Home and 3 Others

Case brief

What is this about?

What did the court decide?

Shiv Charan Gautam v. State of U.P. Thru.Prin.Secy. Home and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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