Mukendra Nishad Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:118035

Court No. - 75

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52800 of 2022 Applicant :- Mukendra Nishad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manoj Kumar Singh,Mohd. Shamim,Satendra Singh

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Counsel for Opposite Party :- G.A.,Vijay Kumar

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Hon'ble Sanjay Kumar Singh,J.

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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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By means of this application under Section 439 of Cr.P.C., applicant Mukendra Nishad, who is involved in Case Crime No. 230 of 2022, under Sections 363, 376, 506 IPC and Section 3/4 POCSO Act, police station Jhangha, district Gorakhpur, seeks enlargement on bail during the pendency of trial.

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As per prosecution case, in brief, informant, who is mother of the victim, lodged a first information report on 12.07.2022 against the applicant with the allegation inter alia that on 04.07.2022 at about 08:00 P.M., when her daughter had gone to attend call of nature outside the house, she was enticed away by the applicant.

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Main substratum of argument of learned counsel for the applicant is that the victim was recovered on 18.07.2022 and thereafter her statement under Section 161 Cr.P.C. was recorded, in which she did not make any allegation against the applicant rather she stated that her brother and parents used to beat her, therefore, she was annoyed and she herself left her house and she was roaming here and there. Today on 18.07.2022, she was apprehended by the police. Thereafter, she was produced for her medical examination on 18.07.2022 at 07:00 P.M. where the doctor has also recorded her statement, in which also she did not make allegation of rape against the applicant and reiterated the statement under Section

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161 Cr.P.C. but later on, when her statement under Section 164 Cr.P.C. was recorded after 20 days on 28.07.2022, she has made allegation against the applicant that he forcibly made physical relation with her.

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On the strength of aforesaid facts, it is argued that the victim has improved her statement under the pressure of her parents, therefore, her statement is not liable to be believed. The applicant does not have any criminal history to his credit. Lastly, it is submitted by learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 01.08.2022 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.

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Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant in the light of the statement under Section 164 Cr.P.C. of the victim.

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Having heard learned counsel for the parties and examined the matter in its entirety, I find that radiological age of the victim is about 17½ years, therefore, she was near to major and she did not make allegation against the applicant in her first statement under Section 161 Cr.P.C. Though she has made allegation of making forceful physical relation against the applicant but she has also stated that she was in touch with the applicant and used to talk with him for the last two years. Under the circumstances, 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 Mukendra Nishad , 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 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 :- 26.5.2023 Shubham

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

Mukendra Nishad v. State of U.P. and 3 Others

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Mukendra Nishad v. State of U.P. and 3 Others

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