Allowed

Vikash Tiwari v. State of U.P.

Allahabad HC11 May 2022BAIL/40884/2021

Case brief

AI extract

What is this about?

The Court allowed a bail application filed by Vikash Tiwari accused under Section 376 IPC and the POCSO Act. Citing several Supreme Court precedents, the judge found contradictions in the victim's statements and age discrepancies. Bail was granted subject to conditions including furnishing a personal bond, surities, not tampering with witnesses, and appearing for trial proceedings.

What did the court decide?

Applicant released on bail on furnishing a personal bond and two reliable sureties, subject to conditions regarding non-tampering and attendance in trial.

Vikash Tiwari Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 72

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40884 of 2021

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Applicant :- Vikash Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Rajnish Shukla Counsel for Opposite Party :- G.A.,Rajeev Kumar Singh

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Hon'ble Sanjay Kumar Pachori,J.

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Shri Karunesh Pratap Singh, Advocate submits that he has filed Vakalatnama on behalf of the applicant in the Registry on 1.2.2022 after taking no objection from the earlier counsel, which is not on the record.

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Office is directed to trace out the same and place it on record.

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Heard Shri Karunesh Pratap Singh, learned counsel for the applicant, Shri Pankaj Kumar Tripathi, learned A.G.A. for the State, Shri Rajeev Kumar Singh, learned counsel for the first informant and perused the material on record.

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The present bail application has been filed on behalf of applicant Vikash Tiwari under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 99 of 2021 for offence punishable under Sections 363, 366, 376 of the Indian Penal Code and Section 5/6 of Protection of Children from Sexual Offences Act, registered at Police Station Belghat, District Gorakhpur, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge/Special Judge (POCSO Act) first, Gorakhpur vide order dated 21.8.2021.

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Brief facts of the case are that the First Information Report dated 24.6.2021 has been lodged by brother of the victim against the applicant stating therein that on 23.6.2021 at about 11.00 p.m. the applicant enticed away his minor sister.

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After lodging the first information report, statement of the victim under Section 161, Cr.P.C. was recorded on 28.6.2021. Medical examination of the victim was conducted on 29.6.2021. Statement of the victim under Section 164, Cr.P.C. was recorded on 5.7.2021. After recording the statements of other prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted against the applicant on 26.8.2021. The applicant was arrested on 6.7.2021.

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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 per school certificate, age of the victim was 16 years 11 months at the time of incident. As per ossification test report, epiphisis of right elbow, right knee and right wrist joint of the victim were found fused and the age of the victim were 18 years on 1.7.2021. It is further argued that the victim has not supported prosecution case in her statement recorded under Section 161, Cr.P.C. It is further argued that the victim has stated in her statement recorded under Section 161, Cr.P.C. that she has gone from her house on her own free and sweet will and she solemnized marriage with the applicant. There is material contradiction/improvement in the statements of the victim recorded under Section 161 & 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.

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Per contra , learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submit 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 they could not point out any material to the contrary. They further submit 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) As per school certificate, age of the victim was 16 years 11 months at the time of incident, but as per ossification test report, age of the victim was 18 years;

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(b) Victim has not supported prosecution case in her statement recorded under Section 161, Cr.P.C. There is material contradiction in the statements of the victim recorded under Sections 161 & 164, Cr.P.C. It 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

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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, Vikash Tiwari 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

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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, keeping in view the law laid down by the Supreme Court in the case of Alakh Alok Srivastava v. Union of India & Anr., AIR 2018 SC 2440, 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 :- 11.5.2022 T. Sinha

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Digitally signed by TRIPTI SINHA Date: 2022.05.13 17:29:51 IST Reason: Location: High Court of Judicature at Allahabad

Vikash Tiwari v. State of U.P.

Case brief

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Vikash Tiwari v. State of U.P.

Case brief

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