Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26815 of 2018 Applicant :- Ubaid Opposite Party :- State of U.P.
Counsel for Applicant :- Arun Kumar Tripathi,Sujeet Kumar Counsel for Opposite Party :- G.A.,Prashant Saxena
Hon'ble Saumitra Dayal Singh,J.
1. List revised. None is present for the informant.
2. Heard Sri Arun Kumar Tripathi, learned counsel for the applicant as well as Sri Nagendra Kumar Srivastava, learned AGA for the State and perused the material placed on record.
3. The instant bail application has been filed on behalf of the applicant - Ubaid with a prayer to release him on bail in Case Crime No. 186 of 2018, under Sections 376D, 506 IPC; 5/6 POCSO Act; 3(2)(v) SC/ST Act and 66-A I.T. Act, 2008, Police Station - Kayamganj, District - Farrukhabad, during pendency of trial.
4. Having heard learned counsel for the parties, at present:
(i) the applicant is accused of offence of gang rape and other offences, punishable with imprisonment upto life;
(ii) against FIR lodged on 13.03.2018, the applicant is in confinement since 15.03.2018;
(iii) the applicant claims to have cooperated in the investigation. In any case, he is not shown to have unduly evaded arrest;
(iv) the applicant has no criminal history;
(v) chargesheet has already been submitted, however, trial has remained pending;
(vi) in such facts, learned counsel for the applicant submits that though specific allegations had been made in the FIR and also such allegations appear to have been made in the course of investigation, however, at the trial, the victim as also her father, who is the first informant, have denied such allegations. Thus, according to the victim, her assailants had covered their faces with cloth and, therefore, she could not identify them. Also, she appears to have stated that the present applicant was not one of the assailants. In such facts, learned counsel for the applicant submits that the applicant is entitled for bail;
(vii) opposing the prayer for bail, learned AGA would submit that the present is a case of heinous offence of gang rape. Reading the FIR allegations and statements recorded under Section 164 Cr.P.C., it has been submitted that the applicant has been directly named and accused of committing gang rape. As to the stage of evidence, it has been submitted that the trial is still pending and certain witnesses remain to be examined.
(viii) having heard learned counsel for the parties and having perused the material placed on record, it does appear that the key prosecution witness, i.e. the victim and the informant have made contradictory statements at the trial and have been declared hostile, however, in view of the fact that the victim and her parents have been declared hostile and have not supported the prosecution story and inasmuch as there can be no allegation or threat to the victim or her family being intimidated after they have been declared hostile, it does appear that the applicant has become entitled to bail, though on heavy surety.
(ix) in any case, no reasonable apprehension has been brought to the fore by the State that the applicant, if enlarged on bail, would either tamper with the evidence or delay the trial or intimidate the witnesses.
5. In view of the above, without expressing any opinion on the final merits of the case, let the applicant involved in the aforesaid crime be released on bail, on his furnishing a personal bond and two heavy 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 by intimidating/pressuring the witness, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
6. In case, of breach of any of the above conditions, the bail being granted shall be cancelled.
7. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
8. It is made clear that, in the event of violation of any terms and conditions of the bail order or in the event of any attempt being made by the applicant to intimidate the witness or to tamper the evidence, informant shall be at liberty to file a bail cancellation application supported by the relevant material. That application if filed, may be taken up on priority.
Order Date :- 18.12.2019 AHA