Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29390 of 2021 Applicant :- Sushil Kumar Yadav @ Rohit @ Dhannu Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Hitesh Pachori Counsel for Opposite Party :- G.A.,Mukesh Baghel
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Heard Sri Hitesh Pachori, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned A.G.A. for the State and perused the material on record.
Sri Mukesh Baghel, learned counsel for the first informant is not present even when the matter is taken in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Sushil Kumar Yadav @ Rohit @ Dhannu Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 0302 of 2015, under Sections 377 & 506 I.P.C. & 5/6 Protection of Children from Sexual Offences Act & 3[2]5 SC/ST Act, registered at Police Station Tajganj, District Agra.
The prosecution case as per the first information report lodged on 09.05.2015 by Manoj Kumar Bharti naming Sushil Kumar as the sole accused is that Dr. Rajkamal Bharti, the younger brother of the first informant came to visit on 05.05.2015 on Swift Desire car which was driven by Sushil Kumar son of Bhimshanker to see their ailing mother. In the night Sushil Kumar stayed in their house. On 06.05.2015 at about 11 AM, Sushil Kumar took his son aged about 10 years by alluring him of getting him chocolate in the car and took him to a field where he where he committed unnatural physical act on him. He then left the vehicle and his son near the house and has run away.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that it has been clarified further during investigation that the said vehicle was a taxi which was got booked by the brother of the first informant and there was some driver of the taxi agent who was driving the vehicle. It is argued that the applicant is not named as Sushil Kumar Yadav, he has been falsely implicated by giving the said name. The correct name of the applicant is Dhannu @ Rohit Yadav. Paragraph 12 of the affidavit has been placed for the same. It is further argued that although there is an allegation that driving license has been recovered from the car but the same is not of the applicant. The photograph affixed in the same is not of the applicant. Even the date of birth mentioned therein is different as that of the applicant. The applicant has been falsely implicated in the present case by the police just to show good work. Paragraph 13, 14 and 20 have been placed. It is argued that the police took away the applicant from his house just in order to falsely implicate him by showing him as being Sushil Kumar Yadav @ Rohit @ Dhannu Yadav. It is argued that the applicant has not been put for identification before the victim. Paragraph 23 has been placed before the Court. It has also been pointed out that the applicant is not having any criminal history as stated in para 29 of the affidavit and he is in jail since 22.05.2021.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the applicant is involved in the present case. It is argued that the name of the applicant is Sushil Yadav and he has two other names.
After having heard the learned counsel for the parties and perusing the record, it is evident that the applicant claims to be falsely implicated by the police by adding Sushil Kumar Yadav as the name in his actual name. There is no test identification conducted before the victim so as to fix the identity of the applicant.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Sushil Kumar Yadav @ Rohit @ Dhannu Yadav, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of family members) each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 27.10.2021 AS Rathore (Samit Gopal,J.)