Allowed

Shiv Kumar @ Shivam v. State of U.P. and 3 Ors.

Allahabad HC14 Feb 2022/11971/2021

Case brief

AI extract

What is this about?

The Court granted bail to the applicant Shiv Kumar charged with Sections 376 IPC and 3/4 POCSO. The applicant argued false implication due to a family property dispute, highlighting contradictions in the prosecution's testimony. The Court noticed congruence between the First Information Report (which did not allege rape) and the FIR informants' statements, deeming the case prima facie fit for bail

What did the court decide?

Allowed bail application on personal bond and two sureties with conditions against tampering with evidence/witnesses and attending trial dates.

Shiv Kumar @ Shivam Vs State of U.P. and 3… — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11971 of 2021

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Applicant :- Shiv Kumar @ Shivam Opposite Party :- State Of U.P. And 3 Ors. Counsel for Applicant :- Suman Lata,Anita Singh Counsel for Opposite Party :- G.A.

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Hon'ble Karunesh Singh Pawar,J.

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Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.

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The prosecution story as alleged in the first information report is that on 27.8.2020 while the prosecutrix was alone at home and her parents went outside, the applicant came silently inside the house and with an ill motive caught hold of her hand and pushed her on the floor. No allegation of rape has been levelled by the prosecutrix who is the informant herself in the first infrmation report. However, while giving statement under sections 161 and 164 CrPC, allegation of rape has been levelled by the prosecutrix which is at variance with the allegation/information given to the police.

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Learned counsel for the applicant submits that the applicant and the prosecutrix are family members. He is uncle of the prosecutrix. His father has died. Due to property dispute, the prosecutrix has falsely implicated the present applicant. Case of false implication is evident from the fact that at the time of lodging of the first information report, parents of the prosecurix were present at the police station, however, no allegation of rape was levelled.

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It is submitted that the statement of the prosecutrix is not only at variance with the allegations in the first information report but also at variance with the statement of her father and mother under section 161 CrPC where both the parents have alleged that on the same day, while the applicant committed rape with the prosecutrix, he also raped the mother of the prosecutrix. It is contended that this is enough to show false implication due to ill motive just to grab the property of the applicant. It is submitted that the prosecutrix has refused to undergo medical examination. The applicant has no previous criminal history. The applicant is in jail since 10.9.2020,

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It is further submitted that there is no possibility of the applicant of fleeing away after being released on bail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

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Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.

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Considering the facts and circumstances of the case, including the fact that charge-sheet has been filed, statement of the prosecutrix as well as the statement of her parents, including the allegations made in the first information report where the prosecutrix is informant herself, the applicant has no criminal history, arguments advanced by learned counsel for the parties, the applicant is in jail since 10.9.2020, and without expressing any opinion on the merits of the case, I am prima facie satisfied that it is a fit case for enlarging the applicant on bail and accordingly, the bail application is allowed.

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Let the applicant Shiv Kumar alias Shivam, involved in Case Crime No.205/2020 under sections 452, 376 I.P.C. and sections 3/4 POCSO Act, P.S. Jagatpur, district Raebareli be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) The applicant will not tamper with the evidence during the trial.

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(ii) The applicant will not pressurize/ intimidate the prosecution witness.

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(iii) 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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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 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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(v) 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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(vi) In case the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section

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82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, 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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Observation(s) made herein above shall not be considered as an expression of opinion on merit of the case.

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Order Date :- 14.2.2022 kkb/

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Digitally signed by KRISHNA KUMAR BARANWAL Date: 2022.02.16 10:23:23 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Shiv Kumar @ Shivam v. State of U.P. and 3 Ors.

Case brief

What is this about?

What did the court decide?

Shiv Kumar @ Shivam v. State of U.P. and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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