Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2594 of 2019 Applicant :- Balbhyasi Opposite Party :- State Of U.P.
Counsel for Applicant :- Prabhat Chandra Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Balbhyasi in connection with Case Crime No. 356 of 2017 under Section 376, 323, 504 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Ekdil, District Etawah.
Heard Sri Prabhat Chandra Mishra, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that though the prosecutrix has spoken inculpatory throughout the investigation but in the ongoing trial, she has deposed exculpatory in her examination-in-chief in S.T. No. 117 of 2017. It is pointed out that the applicant is the prosecutrix's father. She had alleged rape against him. It is said in the examination-in-chief that her father would beat her up, and did not give her anything to eat. This led her to be perturbed so much that at the suggestion of certain natives of her Mohalla, she got an FIR registered against her father on 29.08.2017. She has said that on that account, she has spoken inculpatory in the investigation and before the Magistrate. She was declared hostile and cross- examined where she said that her mother had passed away about 10-12 years ago. Though she has said that she does not remember the names of people at whose instance she proceeded against her father, but certain persons of the Mohalla had pressurized her to speak against her father. She has denied the suggestion that she had spoken to the police or made the statement before the Magistrate of her free will on the basis of truth. She has also denied the suggestion that her father had been ravishing her for the past three years. She was further cross examined by the defence, where she has said that her father works as a manual labourer in the city. It is also said that her father would scold her about some mistakes which would make her feel bad and that at the incitement of others being annoyed, she got this case against her father registered. The statement of other witnesses are also exculpatory, in the submission of learned counsel for the applicant.
Learned AGA has opposed the prayer for bail and submitted that evaluation of evidence is a matter which is in the province of the trial court on the basis of which no relief can be afforded by this Court in these proceedings under Section 439 Cr.PC.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecutrix has spoken exculpatory in her dock evidence, as also three witnesses of the fact, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Balbhyasi involved in Case Crime No. 356 of 2017 under Section 376, 323, 504 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Ekdil, District Etawah be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence lead unaffected by anything said in this order.
Order Date :- 21.1.2019 Deepak