Diyam @ Shivam v. State of U.P. and 3 Others

Court No. - 48 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44636 of 2023 Applicant :- Diyam @ Shivam Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohd Javed Akhter,Mohd. Monis Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.

¶1Heard Sri Mohd. Monis, learned counsel for applicant and Sri Paritosh Malviya, learned AGA for State.

¶2This is second bail application filed by applicant-Diyam alias Shivam in Case Crime No. 292 of 2022, under Sections 376AB, 504, 506 IPC and 5/6 POCSO Act, Police Station Khaga, District Fatehpur. First bail application for applicant was rejected vide order dated 08.05.2023 by giving following reasons: "7. In the present case, applicant is a neighbor of victim aged about 4 years, who has given a specific statement recorded under Sections 161 and 164 Cr.P.C. and made specific allegations against applicant that he has committed the aforesaid offence.

¶8In these circumstances considering the seriousness of the offence as well as the age of victim, no case of bail is made out.

¶9Accordingly, the bail application is rejected. However, Trial Court shall take all endeavour to record the statement of victim preferably within a period of three months from today."

¶3This Court passed following order on 19.10.2023: "This is the second bail application. First bail application was rejected on 8.5.2023. Mohd. Monis, learned counsel for the applicant submits that thereafter statement of victim has been recorded, however, she has not supported the case of prosecution and turned hostile. In these circumstances, before entering into merits of the case, Trial Court shall submit a report in regard to present status of trial which shall include number of proposed prosecution witnesses, number of witnesses examined and the likelihood period under which trial could be concluded. List on 23.11.2023. Registrar (Compliance)to take steps."

¶4In pursuance of above order, Trial Court has submitted report dated

02.11.2023 that out of six proposed prosecution witnesses two have been examined and trial can be concluded within nine months.

¶5Learned counsel for applicant has reiterated the above submission.

¶6Learned AGA appearing for State submits that during examination-in-chief victim has not given any answer to relevant questions and when statement under Section 164 Cr.P.C. was shown to her, she has specifically stated that I have stated truth therein.

¶7In aforesaid circumstances even the victim was declared hostile though it was not necessary and since she has supported her statement recorded under Section 164 Cr.P.C., at this stage it cannot be said that evidence of victim is not sufficient to prove the case against applicant.

¶8The bail application is accordingly rejected.

¶9Trial Court is directed to conclude trial expeditiously, preferably within the period as proposed in report.

¶10Registrar (Compliance) to take steps. Order Date :- 23.11.2023 AK High Court of Judicature at Allahabad