Allowed

Anubhav Yadav v. State of U.P. and 2 Others

Allahabad HC20 May 2022BAIL/7532/2022

Case brief

AI extract

What is this about?

This judgment grants bail to Anubhav Yadav in a POCSO/IPC case involving abduction and sexual assault charges. The High Court noted conflicting medical age reports and the victim's contradictory statements but held that without expressing an opinion on merits, the broader interest of the State and other circumstances warranted bail, citing Supreme Court precedents on bail considerations.

What did the court decide?

Release on bail subject to personal bond and two reliable sureties with conditions against tampering and mandatory attendance in court.

Anubhav Yadav Vs State of U.P. and 2 Others — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 72

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7532 of 2022

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Applicant :- Anubhav Yadav Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Haridwar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Haridwar Singh, learned counsel for the applicant and 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 Anubhav Yadav under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Sessions Trial No. 204 of 2021, Case Crime No. 232 of 2021, for offence punishable under Sections 363, 366, 376-D, 506 of the Indian Penal Code, and Section 5/6 Protection of Children from Sexual Offences Act 2012, registered at Police StationSidhari, District- Azamgarh during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, (Rape and POCSO Act), Court No. 2, Azamgarh vide order dated 13.01.2022.

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Brief facts of the present case are that the first information report dated 24.09.2021 has been lodged against the applicant and other co-accused Gaurav Singh by the mother of the victim stating therein on 24.09.2021 at 09:00 P.M. applicant and other co-accused persons enticed away her daughter.

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After lodging of the first information report, the statement of the victim was recorded under Section 161 of Cr.P.C. on 25.09.2021; the medical examination of the victim was conducted on 27.09.2021. The statement of the victim was recorded under Section 164 Cr.P.C. on 05.10.2021. After recording the statement of the prosecution witnesses under Section 161 of Cr.P.C., the Investigating Officer has submitted charge-sheet against the applicant and other co-accused Gaurav Singh on 16.11.2021. The applicant was arrested on 16.11.2021.

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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. It is further submitted that as per school certificate of the victim, the age of the victim was 16 years 10 months at the time of the incident. It is further submitted that as per ossification report epiphysis of right elbow and right wrist

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of the victim were found fused and the age of the victim was 18 years at the time of radio-logical examination test on 04.10.2021. It is further submitted that the victim has not supported the prosecution case in her statement recorded under sections 161 Cr.P.C. It is further submitted that there is material contradiction and improvement between the statement of the victim recorded under Sections 161 and 164 Cr.P.C. As per statement of the victim recorded under Section 161 of Cr.P.C. wherein she stated that she has left her house on her own free and sweet will and met with applicant and other co-accused Gaurav Singh in a temple at about 11:30 A.M. and she returned back her house at about 01:00 P.M. After that on 24.09.2021 she left her house and went to the station and called the applicant. It is further submitted that the victim has not supported the prosecution case as PW-1 and first informant has also not supported the prosecution case in his cross-examination as PW2 before trial court.

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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. 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 F.I.R. 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) As per school certificate of the victim, the age of the victim was 16 years 10 months at the time of the incident;

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(b) As per radio-logical report, the age of the victim was 18 years;

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(d) There is material contradiction and improvement between the statement of the victim recorded under Sections 161 and 164 Cr.P.C.;

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(e) The victim has also not supported the prosecution case

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before the trial court as PW-1, 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 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, Anubhav 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

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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/endeavor 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 along-with 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 :- 20.5.2022 Ishan

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Digitally signed by ISHAN JAISWAL Date: 2022.05.25 17:49:51 IST Reason: Location: High Court of Judicature at Allahabad

Anubhav Yadav v. State of U.P. and 2 Others

Case brief

What is this about?

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Anubhav Yadav v. State of U.P. and 2 Others

Case brief

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