Court No. - 32 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16633 of 2018 Applicant :- Arun Kumar Vishwakarma Opposite Party :- State Of U.P. Counsel for Applicant :- Suresh Singh,Sri O.P Singh Senior Advocate Counsel for Opposite Party :- G.A.
Hon'ble Shashi Kant Gupta,J.
This is a second bail application. The first bail application was rejected for want of prosecution.
This application has been filed with a prayer to release the applicant on bail in Case Crime No.
386 of 2015 under Sections 363, 366, 342, 376,323,506 I.P.C. and 3/4 POCSO Act, P.S.
Shahpur District Gorakhpur.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the case. He further submits that the applicant has not committed the alleged offence and has been falsely implicated with a view to harass, victimise and exert undue pressure on him just to black mail him. He further submits that the age of the prosecutrix, as per the medical report, is 18 years and no definite opinion about rape has been given by the Doctor. He further submits that no injury, either external or on the private parts of the prosecutrix, was found. He further submits that there are material contradictions in the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. and variation in her statements itself creates doubt upon the credibility and truthfulness of the prosecution story. While referring to the averments made in the supplementary affidavit and also the annexures annexed therewith, which are the certified copies of the statements of the prosecution witnesses recorded before the trial court, learned counsel for the applicant submits that the statement of P.W. 1 Kumari Radha Srivastava ( victim) P.W. 2 NiranjanLal( father of the victim), P.W. 3 Smt. Kusum Srivastava ( mother of the victim) were recorded before the trial court and they did not support the prosecution story and therefore they have been declared hostile. He further submits that the victim in her statement has categorically stated that neither the applicant had committed any marpit with her nor did he establish any physical relation with her against her wishes. He further submits that since all the witnesses of fact have been declared hostile, now there is no cogent and convincing evidence on record to prove the case of the prosecution beyond doubt and therefore, there is every likelihood of the applicant being acquitted. He further submits that the applicant has got no criminal history to his credit and there are no chances of his fleeing away from the judicial process or tampering with the prosecution evidence, and is in jail since 11.10.2015.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, his long detention period in jail and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant Arun Kumar Vishwakarma involved in the aforesaid Case 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:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurise/ intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed.
In case of breach of any of the above conditions , the court below shall be at liberty to cancel the bail.
Order Date :- 26.10.2018 MLK