Allowed

Shiv Shankar v. State of U.P. and 3 Others

Allahabad HC6 Feb 2023BAIL/57062/2022

Case brief

AI extract

What is this about?

This bail application was allowed despite serious allegations of sexual assault and indecent acts. The court found the accused's specific relationship to the victim and the improbable nature of the allegations in the presence of family members justified release on bail.

What did the court decide?

The applicant was released on bail on furnishing a personal bond and two sureties subject to standard conditions.

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

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Court No. - 84

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 57062 of 2022

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Applicant :- Shiv Shankar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Om Prakash Mishra Counsel for Opposite Party :- G.A.,Reetika

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Hon'ble Sameer Jain,J.

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Heard Sri Om Prakash Mishra, learned counsel for the applicant, Sri Vijay Bahadur Shivhare, learned counsel for the informant and Sri Jhamman Ram, learned AGA, for the State.

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The instant bail application has been moved on behalf of the applicant with the prayer to release him on bail in Case Crime No.219 of 2022, under Sections 354Kh, 323, 504, 506 and 452 IPC and Sections 7 and 8 of the Protection of Children From Sexual Offences (POCSO) Act, 2012, Police Station Sujanganj, District Jaunpur during pendency of the trial.

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Applicant is the brother-in-law (Devar) of the informant and there is multiple allegation was made against him in the FIR.

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According to the FIR, applicant on 19.10.2022 made assault upon the informant and thereafter on 20.10.2022 he committed some indecent act with the minor daughter of informant and it is further alleged in the FIR that co-accused Badal made sexual assault upon the informant and when she resisted then coaccused Karishma (sister of applicant) made assault through wooden stick upon her.

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Learned counsel for the applicant submitted that entire allegations made against the applicant are totally false and baseless and informant is his real Bhabhi and some dispute with regard to ancestral property is pending between the parties and informant wants to grab the share of applicant and his mother and only due to this reason she falsely implicated the

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applicant.

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Learned counsel for the applicant further submitted that the allegation made in the FIR itself appears to be highly improbable and no reliance can be placed on such version. He further submitted that when the statements of informant and her minor daughter were recorded under Sections 161 and 164 Cr.P.C. then they gradually developed the story narrated in the FIR and although in the statement of minor daughter of victim recorded under Section 161 Cr.P.C. only general allegation with regard to indecent act has been made against the applicant but when the statement of informant was recorded under Section 164 Cr.P.C. then she extended the allegation only with intention to make it serious and stated that applicant, who is real uncle of her daughter made sexual assault and this act was committed by him in the presence of his sister and mother and this allegation appears to be highly improbable as for such indecent activities neither sister nor mother of applicant can encourage him.

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He next submitted that applicant is not having any criminal history and he is in jail in the present matter since 21.10.2022 and, therefore, he may be released on bail.

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Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that applicant, who is the real uncle of the daughter of informant made not only sexual assault upon her but he continuously did indecent activities in the house with the informant also and specific allegation has been made by the informant in her statement recorded under Section 164 Cr.P.C.against the applicant that how he made sexual assault upon the minor daughter of informant even in front of his sister and mother.

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Learned counsel for the informant further submitted that after

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lodgement of the FIR of the present case, the associates of applicant continuously threatened her and they also made some assault even before the Police and, therefore, considering the nature of offence and relationship of applicant with victim and the informant, it is not a case in which applicant should be enlarged on bail.

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I have heard learned counsel for the parties and perused the record of the case.

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Applicant is the Dever of the informant and there is multiple allegation against him in the FIR with regard to indecent act/assault made by him not only upon the informant but also upon her minor daughter and statement of victim, i.e., minor daughter of the informant recorded under Sections 161 and 164 Cr.P.C. also suggest that applicant used to did some indecent activities with her but in the statement of victim, i.e, daughter of the informant and in the statement of informant recorded under Sections 161 and 164 Cr.P.C. only general allegation appears to be made against the applicant although informant in the statement recorded under Section 164 Cr.P.C. tried to specify the allegations of assault made by applicant against her daughter, but neither in the FIR nor in the statement recorded under Section 161 Cr.P.C.she made any such allegation. Further, from the perusal of the statement of the informant recorded under Section 164 Cr.P.C. it appears that applicant, who is uncle of her minor daughter made sexual assault upon her in the presence of his sister and mother. This fact appears to be improbable and it is hard to believe that an uncle of minor daughter would commit such act in the presence of his mother and sister.

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Applicant is not having any criminal history and he is in jail in the present matter since 21.10.2022.

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Therefore, from the discussions made above, in my view, applicant is entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

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Let the applicant- Shiv Shankar be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

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(iii) The applicant shall not indulge in any criminal and antisocial activity.

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In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

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Order Date :- 6.2.2023 SKM

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Digitally signed by :- SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad

Shiv Shankar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Shiv Shankar 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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