Balram Godiya v. State of U.P. Thru. Prin. Secy. Home Lko. and 3 Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10866 of 2023 Applicant :- Balram Godiya Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Others Counsel for Applicant :- Pradyumn Shukla Counsel for Opposite Party :- G.A.,Arvind Mishra Hon'ble Brij Raj Singh,J.

¶1Heard Sri Pradyumn Shukla, learned counsel for the applicant, Sri Arvind Mishra, learned counsel for the complainant and Sri Diwakar Singh, learned A.G.A. for the State.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.552 of 2022 under sections 363, 366, 376, 504, 506 IPC and 3/4 POCSO Act and 3(2)(v) SC/ST Act, Police Station Gangaghat, District Unnao.

3.It has been submitted by learned counsel for the applicant that Kanchan, prosecutrix ( P.W.-2) has been examined before the trial court. Though, examination-in-chief she supported the prosecution case but while case was tried and tested before the trial court in cross-examination she has not supported the prosecution case and she has deposed before the court that her date of birth has wrongly been mentioned in the school record otherwise her real date of birth is of the year 2001. She further deposed that the applicant did not enticed her. She was forced to marry to some other person that is why she had gone to her relation out of her own will. She has also deposed before the court below that at the behest of Rajendra Lodh, the applicant was falsely implicated and whatever statement recorded before the Magistrate, the same was recorded at the behest of Rajendra Lodh and the police had also pressurized her to give statement against the applicant. She had not given statement to the police. Learned counsel for the applicant has submitted that father of the prosecutrix (P.W.-1) has also not supported the prosecution case in cross-examination.He has stated that police had not taken his statement and whatever he stated to the police, was not recorded by the police. It has been submitted by learned counsel for the applicant that after looking into the statement of the prosecutrix (P.W.-2) at the moment it cannot be inferred that the applicant has committed rape upon the prosecutrix.The applicant has no previous criminal history and there is no possibility of fleeing away from the judicial process or tempering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail. The applicant is in jail since

18.11.2022.

¶4On the other hand Sri Arvind Mishra, learned counsel for the complainant has opposed the prayer for bail but he has also admitted that in cross-examination, the prosecutrix (P.W.-2) has not supported the prosecution case.

¶5Sri Diwakar Singh, learned A.G.A. has opposed the prayer for bail but could not dispute the fact that the proseuctrix (P.W.-2) has not supported the prosecution case.

¶6Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that the prosecutrix (P.W.-2) has not supported the prosecution case, therefore, I am of the opinion that the applicant is entitled to be released on bail .

¶7Let the applicant, namely, Balram Godiya, be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) 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. is issued and the 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 of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 12.10.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench