Allowed

Pradeep Kushwaha v. State of U.P. and 3 Others

Allahabad HC27 Apr 2023BAIL/48371/2022

Case brief

AI extract

What is this about?

In a bail application involving offences under POCSO, rape, kidnapping, and the SC/ST Act, the Court granted bail to the accused. The Court considered arguments regarding the victim's radiological age, the existence of signs of consent, and the victim's subsequent refusal to marry the applicant, concluding that the accused had made out a case for bail.

What did the court decide?

Applicant Pradeep Kushwaha released on bail with two sureties in like amounts on furnishing a personal bond and abiding by specified conditions.

Pradeep Kushwaha Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 75

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48371 of 2022

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Applicant :- Pradeep Kushwaha Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vikash Kumar Tiwari,Pulak Ganguly Counsel for Opposite Party :- G.A.,Nishant Kumar Singh,Raj Deepak Singh

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Hon'ble Sanjay Kumar Singh,J.

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Heard Mr. Pulak Ganguly, learned counsel for the applicant, learned Additional Government Advocate representing the State and Mr. Nishant Kumar Singh, learned counsel appearing on behalf of the informant / victim.

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By means of this application under Section 439 of Cr.P.C., applicant Pradeep Kushwaha, who is involved in Case Crime No. 207 of 2021, under Sections 363, 376, 342, 312, 328, 323, 504, 506 IPC, Section 3/4 POCSO Act and Section 3(2)(v) SC/ST Act, police station Khadda, district Kushinagar, seeks enlargement on bail during the pendency of trial.

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On 10.04.2023, following order was passed by this Court :-

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"Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant / complainant.

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As per prosecution case, in brief, informant, who is mother of the victim, lodged the first information report of this case on 17.09.2021 under Section 363 IPC against unknown person alleging inter alia that her daughter aged about sixteen years went missing since 09.08.2021. After about one year on 18.07.2022, the victim came back to her house and she in her statements under Section 161 and 164 Cr.P.C. has disclosed inter alia that she was in touch with the applicant-Pradeep Kushwaha for the last two years. On 10.08.2021, applicant took her to Ramkola and kept her in rented room and got her

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admission done in Maanaki Shiksha Niketan. After that he had gone to his house and used to come to her room in a week and also used to give her expenses. After about one month, applicant started making physical relation with her and on protest he used to beat her. When she became pregnant from the relation of the applicant, he forcefully administered medicine to her to abort the child. When she asked the applicant to take her home, he used to beat her. When she insisted to go her home, applicant dropped her at Satish Kushwaha's house, but his uncle told the applicant to take her back. Then applicant-Pradeep Kushwaha told her, you take the cheque of Rs. Two lakh from him and go with some other man. On refusing by her, applicant along with his friends tried to kill her but any how she saved herself. Applicant locked her in a room and left. When Santosh's uncle came there looking for her, then she told him everything. Thereafter he dropped her at police station.

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Learned counsel for the applicant, upon instruction from the father of the applicant, who is present before this Court, further submits that the applicant wants to marry the victim. His parents are also ready for his marriage with the victim and to keep her as their daughter-in-law with all dignity and respect. Father of applicant is also ready to give undertaking before this Court that victim will not be harassed in any manner.

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In response, learned counsel for the informant/victim upon instruction from victim and her father submits that if the applicant and his parents are voluntarily ready for marriage of the victim with the applicant, she and her parents have no objection, subject to assurance that after marriage she will not be harassed by them. He also submits that on the aforesaid undertaking given from the side of the applicant, victim has also no objection, if Court grants bail to the applicant.

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Learned A.G.A. for the State submits that as per ossification test report dated 20.07.2022 of the victim, her radiological age is about eighteen years.

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Learned counsel for the applicant as well as victim prays for and are allowed a week's time to file afÏdavits with regard to their submissions as noted above.

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List this case on 20.04.2023 as fresh.

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On the next date, at the time of hearing of this case, father of the accused-applicant and victim along-with her father shall remain present before this Court."

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Pursuant to aforesaid order dated 10.04.2023, father

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of the victim is personally present before this Court, who has been identified by his counsel Mr. Nishant Kumar Singh and submits that earlier the victim was ready for marriage with the applicant but now she is not willing to marry the applicant, therefore, the victim has not filed afÏdavit in terms of submission made by Mr. Nishant Kumar Singh, learned counsel for the informant/victim as mentioned in the order dated 10.04.2023.

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Mr. Pulak Ganguly, learned counsel for the applicant, arguing the case on merits, submits that the victim is major and was consenting party with the applicant, therefore, it is not a case of rape but a case of consensual relation between the victim and the applicant, who is languishing in jail since 01.08.2022 and is having no criminal history to his credit.

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Per contra, learned A.G.A. for the State and learned counsel for the informant opposed the prayer for bail of the applicant but do not dispute the aforesaid facts.

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Having heard learned counsel for the parties and examined the matter in its entirety, I find that as per ossification test report, radiological age of the victim is about 18 years and she spent about one year in the company of the applicant. The victim had ample opportunity to raise alarm or to make complaint or to run away but she did not do so, therefore, possibility of the victim being consenting party with the applicant cannot be ruled out.

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Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed .

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Let the applicant Pradeep Kushwaha , be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court

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concerned with the following conditions, which are being imposed in the interest of justice:-

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(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

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(ii) That 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 ofÏcer or tamper with the evidence.

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(iii) That after his release, the applicant shall not involve in any criminal activity.

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(iv) The identity, status and residential proof of sureties will be verified by court concerned.

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

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Order Date :- 27.4.2023 Shubham

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Digitally signed by :- SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad

Pradeep Kushwaha v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Pradeep Kushwaha 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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