Allowed

Sushil Mishra v. State of U.P. and 3 Others

Allahabad HC7 Dec 2022BAIL/49314/2022

Case brief

AI extract

What is this about?

The High Court allowed the bail application of the applicant convicted under Section 376 IPC and POCSO Act. Finding contradictions in the victim and mother's trial statements and noting the applicant's clean record, the court granted bail subject to specific attendance and conduct conditions.

What did the court decide?

The applicant Sushil Mishra be released on bail on furnishing a personal bond and two reliable sureties subject to strict conditions of appearance and conduct.

Sushil Mishra Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49314 of 2022

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Applicant :- Sushil Mishra Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Abhay Singh Tomar,Adarsh Bhushan Counsel for Opposite Party :- G.A.

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Hon'ble Rajiv Gupta,J.

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

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Learned AGA has pointed out that notice upon the opposite party no.4- first informant has served on 22.11.2022, however, no one has appeared on her behalf.

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This bail application has been filed by the applicant seeking bail in Case Crime No. 204 of 2020, under Sections 376(Ka)(Kha) IPC and Section 5M/6 of POCSO Act, Police Station Madhogarh, District Jalaun, during pendency of trial.

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Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.

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Learned counsel for the applicant has next drawn the attention of the Court to the statement of the victim recorded during the course of trial, in which, she has categorically stated that while she had gone to the Temple along with her mother, someone pushed her, consequent to which, she fell down and suffered injuries on her nose.

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Learned counsel for the applicant has next submitted that during cross-examination, victim has stated that Sushil Mishra (applicant) had not committed any indecent act with her and when she had fallen in the Temple, her mother was not there. The boy, who had pushed her, was a few years elder to her, due to which, she fell down and suffered injuries. On her attention been drawn to her statement shown to be recorded under Section 164 CrPC, she has stated that said statement was given by her at the behest of her family members and she has not stated anything about the applicant to the police.

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Learned counsel for the applicant has next submitted that during the course of trial, statement of Smt. Shivani Devi, mother of the victim has also been recorded, however,

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she too has not supported the prosecution story. In the cross-examination also, she has categorically denied that the applicant had committed rape on her daughter.

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Learned counsel for the applicant has next submitted that the applicant is in jail since 26.12.2020 and has no criminal history to his credit and has been regularly cooperating in the trial. There is no chance of applicant fleeing away from judicial process or tampering with the witnesses, as such, he may be released on bail.

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Per contra, learned AGA has vehemently opposed the prayer for bail but could not dispute the aforesaid facts.

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Having considered the rival submissions made by learned counsel for the parties and on perusal of the record, it is evident that the victim in her statement recorded during the course of trial has stated that while she had gone to the Temple along with her mother, someone had pushed her, consequent to which, she fell down and suffered injuries on her nose.

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During cross-examination, victim has stated that Sushil Mishra (applicant) had not committed any indecent act with her and when she had fallen in the Temple, her mother was not there. The boy, who pushed her, was a few years elder to her, due to which, she fell down and suffered injuries.

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Smt. Shivani Devi, mother of the victim, in her statement recorded during the course of trial, has also not supported the prosecution story. In the cross-examination, she has categorically denied that the applicant had committed rape on her daughter.

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Furthermore, the applicant is in jail since 26.12.2020 and has no criminal history to his credit. There is no chance of applicant fleeing away from judicial process or tampering with the witnesses.

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In view of the aforesaid facts and circumstances, I am of the view that the applicant has made out a case for bail. Let the applicant Sushil Mishra be released on bail in the aforesaid case on furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following conditions:-

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(1). 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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(2). 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 IPC.

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(3). 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 in such proclamation, then the trial court shall initiate proceedings against him in accordance with law under Section 174-A IPC.

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(4). 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 the 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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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.

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It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.

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In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.

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The bail application is accordingly allowed.

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The trial court is expected to make all endeavours to conclude the trial within a period of three months from the date of receipt of certified copy of this order, without granting any unnecessary adjournment to either of the parties, if there is no other legal impediment in concluding the trial.

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Order Date :- 7.12.2022 Nadim

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Digitally signed by NADIM ALAM Date: 2022.12.08 13:21:35 IST Reason: Location: High Court of Judicature at Allahabad

Sushil Mishra v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Sushil Mishra v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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