Allowed

Pushkar Yadav v. State of U.P.

Allahabad HC10 Feb 2022BAIL/38049/2021

Case brief

AI extract

What is this about?

In Criminal Misc. Bail Application No. 38049 of 2021, the High Court considered an application released by Pushkar Yadav in a POCSO and rape case. The court found it a fit case for bail despite the serious charges, balancing public interest, prior mutual disputes, and lack of corroborative evidence beyond the victim's statement.

What did the court decide?

The application is allowed; applicant released on bail with a personal bond and two sureties subject to conditions of non-tampering and court attendance.

Pushkar Yadav Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 80

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38049 of 2021

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Applicant :- Pushkar Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Deep Chand Singh Counsel for Opposite Party :- G.A.,Brijesh Kumar Mishra

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Deep Chandra Singh, learned counsel for the applicant, Sri Brijesh Kumar Mishra, learned counsel for the first informant, learned AGA for the State and perused the material on record.

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The present bail application has been filed by the applicant Pushkar Yadav under Section 439 of the Code of Criminal Procedure to release him on bail in Case Crime No.271 of 2020, under Section 452, 506, 376 DA IPC and Section 5/6 POCSO Act, Police Station Barhaz, District, Deoria, during the pendency of the trial after rejecting the bail application of the applicant by Special Judge (POCSO) Act vide order dated 24.02.2021.

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Brief facts of the case are that the first information report dated 05.11.2020 has been lodged on the basis of an application under Section 156(3) Cr.P.C. against the applicant and other coaccused Narendra (real brother of the applicant) stating that in the night of 13/14.8.2020 at about 2.30 AM the complainant's minor daughter aged about 14 years was sleeping in a room, by her side at a little distance the grandmother of the victim was also sleeping. The room had no door. There was a dark night and taking advantage of dark night, the applicant Pushkar Yadav and his real brother Narendra came there. Her mouth was gagged with cloth pointing out a knife onto her neck and she was taken away from the room to some distance near the tree of Neem and committed rape forcefully. At the time of incident other co-accused, Narendra was standing there having gun. The incident was reported at the police station on 14.08.2020 but the first information report was not lodged then, the application under section 156 (3) Cr.P.C. was filed.

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After lodging of the first information report statement of the victim under Section 161 Cr.P.C. was recorded on 16.11.2020. The medical examination was conducted on 19.11.2020. The statement under Section 164 Cr.P.C. of the victim was also recorded on 23.11.2020 and after completing the investigation,

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chargesheet has been submitted on 18.12.2020. The applicant was arrested on 16.12.2020.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive as well as due to old enmity as stated in the report of the police which has been received by the court concerned which shows that some dispute arose on 13.08.2020 between the first informant and the applicant and they were challaned under sections 107/116 Cr.P.C. It is unworthy to believe that a person in the presence of his real brother would commit rape with the first informant's daughter at 2.30 AM in the night. It is further submitted that the age of the victim was found 16 years in radiological examination and medical examination report of the victim does not support the allegation of rape. It is further argued that the co-accused Narendra yadav has already granted bail by a Co-ordinate Bench of this Court in Criminal Misc. Bail Application No.31289 of 2021 on 15.12.2021.

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

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(a) The applicant and the first informant were challaned under Section 107/116 Cr.P.C. on 13.08.2020.

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(b) The offence has been committed by the applicant in front of his real brother Narendra Yadva on 13/14.08.2020 at 2.30 AM in the night.

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(d) Except the statement of the victim, there is no other evidence against the applicant.

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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

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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- Pushkar Yadav be released on bail in the aforesaid case crime number on his 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 him 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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Order Date :- 10.2.2022 Nitendra

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Digitally signed by NITENDRA TIWARI Date: 2022.02.15 10:13:58 IST Reason: Location: High Court of Judicature at Allahabad

Pushkar Yadav v. State of U.P.

Case brief

What is this about?

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Pushkar Yadav v. State of U.P.

Case brief

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