Court No. - 52
Case :- CRIMINAL APPEAL No. - 3651 of 2018 Appellant :- Ganesh Yadav Respondent :- State Of U.P. And Another Counsel for Appellant :- Ashok Kumar Singh Counsel for Respondent :- G.A.,K.S.Shukla,Lalit Kumar
Hon'ble Rajul Bhargava,J.
Heard Shri Ashok Kumar Singh, learned counsel for the appellant, Sri K.S. Shukla & Sri Lalit Kumar, Advocates appearing for the opposite party no.2, learned AGA for the State and perused the record.
This appeal has been filed against the judgement and order dated 22.6.2018 passed by Additional Sessions Judge/ Special Judge, POCSO Act, Court No.1, Bhadohi-Gyanpur in Second Bail Application No.422 of 2018 (Ganesh Yadav vs. State of U.P.), arising out of Case Crime No.154 of 2018, under Sections 363, 366, 376, 504, 506 I.P.C., 3(2)5-A of SC/ST Act and 3/4 of POCSO Act, P.S. Gopiganj, District Bhadohi, by which bail plea of appellant has been rejected.
It has been argued by learned counsel for the appellant that the victim has stated her age to be 18 years before the Magistrate. She has stated that the applicant-appellant is her husband and had gone with him of her free will to Pune and had stayed with her for about two months. She has not levelled any allegation of sexual assault by the appellant on her. On the contrary, she states that she wants to go to the house of appellant. As per medical report, based on ossification test, she is aged about 19-20 years and thus, prima-facie offence under Section 376 IPC is not made out.
Per contra, learned counsel for the opposite party no.2 opposed the bail and submitted that as per school certificate, the victim is aged about 17 & half years however, he could not dispute the statement of victim under Section 164 Cr.P.C.
Having heard the submission of learned counsel for the applicant- appellant, considering the facts and circumstances of the case and nature of accusation against appellant and evidence in support of it and unlikelihood of conclusion of trial in near future, I find that a case for bail has been made out.
In the result, appeal stands allowed. The order dated 22.6.2018 passed by Additional Sessions Judge/ Special Judge, POCSO Act, Court No.1, Bhadohi-Gyanpur in Second Bail Application No.422 of 2018 (Ganesh Yadav vs. State of U.P.), arising out of Case Crime No.154 of 2018, under Sections 363, 366, 376, 504, 506 I.P.C., 3(2)5-A of SC/ST Act and 3/4 of POCSO Act, P.S. Gopiganj, District Bhadohi, is set aside.
Let appellant-applicant-Ganesh Yadav, be released on bail in aforesaid case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 24.8.2018 Hasnain