Allowed

Shiv Kumar v. State of U.P.

Allahabad HC9 Feb 2023BAIL/6353/2023

Case brief

AI extract

What is this about?

This court granted bail to the applicant in a rape case pending trial. The court considered the FIR delay, location evidence, and severity of punishment but held the applicant made a case for bail without deciding merits. Specific bonding conditions were imposed.

What did the court decide?

Applicant released on bail on personal bond and two heavy sureties, subject to conditions against tampering, intimidating witnesses, and committing further offences.

Shiv Kumar Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Court No. - 83

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6353 of 2023

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Applicant :- Shiv Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Harishchandra Yadav,Aushim Luthra Counsel for Opposite Party :- G.A.

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Hon'ble Krishan Pahal,J.

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List has been revised. Supplementary affidavit filed today is taken on record.

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Heard Sri Aushim Luthra, learned counsel for the applicant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the record.

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Applicant seeks bail in Case Crime No. 520 of 2022, under Sections 323, 328, 376, 392, 506 I.P.C., Police Station Kotwali, District Basti, during the pendency of trial.

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As per prosecution story, the applicant, whose mobile number was 9919057258, is stated to have met the victim on 10.9.2022 at about 2.00 pm when she had left for market. The applicant is stated to have administered some sedative in the bottle of water, thereby rendering her unconscious. The applicant is said to have taken her on a motorcycle to a secluded place and committed rape with her and is later on said to have taken away her ornaments and cash Rs. 8 thousand. The victim is said to have taken the number of the applicant when he had gone out for some work and got the number by placing a missed call at her own mobile. The victim is said to have left at Kaptanganj Mandir on the next day at about 5.30 am.

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Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. The applicant has nothing to do with the said offence. His location has been found there, but it does not indicate that the applicant has committed any offence, whatsoever. Learned counsel has also stated that the FIR is delayed by about 11 days and there is no explanation of the said delay caused. The FIR is also silent on this point. It is further stated that the victim is major, aged about 29 years, and is known to the applicant as she used to buy clothes from his shop. It is argued that the victim owed some money towards the applicant and he has been implicated in the case due to the said

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loan. It is next stated that no test identification parade has been conducted as per Section 9 of the Indian Evidence Act. Rather the applicant has been implicated on the basis of being the owner of the mobile number 9919057258. The said statement of victim recorded under Section 164 Cr.P.C. has been recorded after deliberations and legal consultations. It is also stated that there is no possibility of an unconscious person being taken on a motor-cycle from one place to another.

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Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 26.9.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

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Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that the location of the said mobile number 9919057258 has been found at the place of occurrence and thus, the prosecution story stands verified. However, learned A.G.A. could not accord any explanation to the inordinate delay of 11 days in lodging the said FIR.

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Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, pending trial and considering the complicity of accused, severity of punishment, delay in lodging the FIR, at this stage, without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed .

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Let the applicant- Shiv Kumar involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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i. The applicant will not tamper with the evidence during the trial.

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ii. The applicant will not pressurize/ intimidate the prosecution witness.

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iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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iv. The applicant shall not indulge in any criminal activity or

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commission of any crime after being released on bail.

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v. 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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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion on the testimony of the witnesses.

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Order Date :- 9.2.2023 Shalini

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Digitally signed by :- SHALINI JAISWAL High Court of Judicature at Allahabad

Shiv Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shiv Kumar v. State of U.P.

Case brief

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