Bail application during trial in a rape/POCSO case where the victim, complainant and victim's mother turned hostile and the medical report did not support the prosecution version. The court granted bail with standard anti-tampering conditions.
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Neutral Citation No. - 2024:AHC-LKO:29592
Court No. - 14
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3963 of 2024
Applicant :- Ankit Tiwari Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Govt. Lko. And 3 Others Counsel for Applicant :- Hari Nam Singh Counsel for Opposite Party :- G.A.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the applicant and learned AGA for the State-respondent.
The instant application has been moved seeking bail in respect of Case Crime No. 497 of 2022, under Sections 376AB I.P.C. & Section 5(M)/6 of the POCSO Act, Police Station Harpalpur, District Hardoi, during trial.
At the outset, it has been informed by the learned AGA that notice has been served on the complainant/opposite party no.2. However, none has put in appearance on her behalf.
The submission of the learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the case. It is further pointed out that neither the prosecutrix nor the complainant has supported the version as contained in the FIR. Moreover, the medical examination report which has been brought on record as Annexure-3, does not support the version of the prosecution.
It is further submitted that the statements of the victim/prosecutrix were recorded under Sections 161 & 164 CrPC wherein she has completely denied all allegations levelled against the applicant. This fact apart, the statement of the mother of the victim was also recorded in which she has also given a contrary statement. Thus, both these witnesses were declared hostile as they had not supported the version of the prosecution. Even during cross examination, no response has been elicited from them by virtue of which the alleged offence is said to have been committed.
It is urged that the applicant has no criminal history and has been in jail since 23.10.2022. Thus, in the aforesaid circumstances, the applicant deserves to be enlarged on bail.
It is also urged that there is no possibility of the applicant of fleeing away after being released on bail or tampering with the witnesses. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. has opposed the prayer for bail, but could not controvert the aforesaid facts.
Considering the rival submissions as well as the facts and circumstances of the case and the material available on record also considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
Accordingly, the instant bail application is allowed.
Let the applicant- Ankit Tiwari involved in the abovementioned case crime be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned. At the time of executing required sureties, the following conditions shall be imposed in the interest of justice:-
(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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.
(iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section
82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(v) 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 Cr.P.C. If in the opinion of the trial court, 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 against him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 12.4.2024
Shravan
Digitally signed by :- SHRAVAN KUMAR High Court of Judicature at Allahabad, Lucknow Bench
1 issue framed by the court
Whether the applicant, whose trial witnesses including the victim have turned hostile and who has been incarcerated since 23.10.2022, should be released on bail during trial.
7 provisions across 3 enactments
Ankit Tiwari
State Of U.P. Thru. Secy. Home Deptt. Govt. Lko.
Jaspreet Singh
As recorded by the court registry
2 orders share this CNR
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