Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20226 of 2018 Applicant :- Yogendra @ Bhola Opposite Party :- State Of U.P.
Counsel for Applicant :- A.K. Mishra,Sati Shanker Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
By means of this application, the applicant who is involved in case crime no. 953 of 2017, under Sections 376, 506 IPC, Section 3/4 POCSO Act and 3(2)(5A) of SC/ST Act, P.S. Highway, District- Mathura is seeking enlargement on bail during the trial.
Learned counsel for the applicant in support of his application for bail submits that the applicant is innocent. He has been falsely implicated. It is further submitted that there are two different limbs of his arguments of the incident (i) There are cross FIRs for the incident said to have been taken place on 17.09.2017 as case crime no. 953 of 2017 was registered by Khajan Singh under sections 354, 323, 506 IPC, section 7/8 POCSO Act and section 3(2)(va) SC/ST Act and another FIR was registered by Smt. Mithilesh Devi referring the same date and time of the incident on 17.09.2017 of which after great deal another FIR was registered on 03.10.2017 as case crime no. 1089 of 2017, in which the prosecurtix namely Km. Karishma of the earlier case was made one of the accused in this case. It is further submitted that since there are two cross cases of the same date and time of the incident, it is difficult to decipher at this stage that which party is aggressor over whom or in other words who shot fire first. (ii) The argument raised by the counsel, that the victim of case crime no. 953 of 2017 after coming to her home, narrated the entire story to her father and mother and consequently, her father has lodged the FIR only to the incident of "attempt" to out rage her modesty and teasing with their daughter. There is no allegation neither any complaint of rape or sexual assault by the applicant or any other. Thereafter during investigation without any plausible justification and reason, the victim herself started swelling the allegation from "attempt" of commit rape and teasing to actual rape. misbehaviour to rape. In her statements recorded u/s 161 Cr.P.C. (on 22.09.2017) and 164 Cr.P.C. (on 27.09.2017), she has levelled a wild allegation for ravishing her modesty. As per medical report, her age is 17 plus years. Her medical report shows that there are physical injuries present but there is no genital injury were found over victim. The I.O. of the case in Parch No. IV of the case diary have candidly pointed out that there are contradictions in the statements of the FIR and in her statements recorded u/s 161 and 164 Cr.P.C. without any plausible justification or reason. The entire prosecution case is nothing but false implication just to equal the equations and nullify the impact of subsequent criminal case. It is next submitted that the applicant is in jail since 09.03.2018.
Learned AGA opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a fit case for bail.
Let the applicant Yogendra @ Bhola, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 29.5.2018 Nisha