Durgesh Kumar Vs State of U.P. Thru. Secy. Home Lko. and 3 Others

Neutral Citation No. - 2025:AHC-LKO:4898

Court No. - 15

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11619 of 2024

Applicant :- Durgesh Kumar Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And 3 Others Counsel for Applicant :- Dhananjai Kumar Tripathi,Amit Kumar Verma,Devendra Verma,Nitin Verma Counsel for Opposite Party :- G.A.,Wasim Ahmad

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Hon'ble Shree Prakash Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail during the trial in Case Crime No. 311 of 2024, under Sections 376D, 506, 201, 313, 504 IPC & Sections 5(g)(I)(j)(ii)/6 of POCSO Act, Police Station- Jaidpur, District- Barabanki.

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Contention of learned counsel for the applicant is that the applicant is innocent and has falsely been implicated in the instant matter due to ulterior motive. He further submits that the FIR is delayed by ten days as the incident is said to have taken place on 13.8.2024, whereas the FIR was lodged on 23.8.2024 and no plausible explanation is given. He further added that the victim in her statement under Section 183 BNSS stated that the incident is of 1.1.2024 i.e., prior to seven months of the alleged incident as is mentioned in the FIR which creates doubts on the prosecution story. He further submitted that the foetus was allegedly got aborted, but no viscera has been sent for DNA examination, thus, the story of the prosecution could not be corroborated and this matter would not lead to punishment. He also submits that there is no material evidence against the applicant and he has also shown other falsity in the prosecution story. He next added that the identically situated co-accused namely, Nand Kishor@Nanda@Krishnanand has already been enlarged on bail in Criminal Misc. Bail Application No. 12428 of 2024 vide order dated 21.01.2025.He further submits that charge-sheet has been filed and as such, there is no possibility that the applicant would tamper with the evidences or would threaten the witnesses. He also submits that the applicant has no previous criminal history and he is languishing in jail since 23.8.2024. Further submitted that the applicant undertakes that

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in case, he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

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Per contra, learned counsel for the State and complainant have opposed the contentions aforesaid and submits that the applicant is not entitled for bail as the applicant including the other co-accused persons after fleeing the fetus, thrown it in the canal.

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Having heard learned counsels for the parties and after perusal of material placed on record, it transpires that the applicant is languishing in jail since 23.8.2024; the FIR is delayed by ten days as the incident is said to have taken place on 13.8.2024, whereas the FIR was lodged on 23.8.2024 and no plausible explanation is given; the victim in her statement under Section 183 BNSS stated that the incident is of 1.1.2024 i.e., prior to seven months of the alleged incident as is mentioned in the FIR which creates doubts on the prosecution story; there is no material evidence against the applicant and he has also shown other falsity in the prosecution story; charge-sheet has been filed and as such, there is no possibility that the applicant would tamper with the evidences or would threaten the witnesses; there is no previous criminal history of the applicant coupled with the fact that the applicant has undertaken that if he is granted bail, he will not misuse the liberty of the same and would cooperate in the trial proceedings.

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Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.

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Let the applicant- Durgesh Kumar involved in the aforementioned crime be released on bail, on his 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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(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

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(2) 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. He shall remain present

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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;

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(3) 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.; and

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(4) 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.

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The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

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It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

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Order Date :- 24.1.2025 Mayank

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Digitally signed by :- MAYANK PRATAP SINGH High Court of Judicature at Allahabad, Lucknow Bench

Durgesh Kumar v. State of U.P. Thru. Secy. Home Lko. and 3 Others

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Durgesh Kumar v. State of U.P. Thru. Secy. Home Lko. and 3 Others

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