Viru Alias Birendra Singh S/O Prem Kumar Singh (Second Bail) v. State of U.P. Thru. Prin. Secy. Home Lko. and 4 Others

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9488 of 2022 Applicant :- Viru Alias Birendra Singh S/O Prem Kumar Singh (Second Bail) Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 4 Others Counsel for Applicant :- Abhishek Dwivedi,Vivek Kumar Divedi Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Notice has been served on opposite party no. 2, but none has appeared before the Court.

¶2This is the second bail application. The first bail application was rejected by Hon'ble Ram Krishna Gautam, J, vide order dated 04.03.2022.

¶3Heard Shri Abhishek Dwivedi, learned counsel for the accused-applicant as well as Shri Mukesh Singh, learned A.G.A. for the State and perused the record.

¶4This bail application has been filed seeking release of the accused/applicant Viru Alias Birendra Singh S/O Prem Kumar Singh on bail, who is involved in Case Crime No. 053 of 2021 under Sections 376-D, 506 I.P.C & Section 3/4 POCSO Act, Police Station Behta Gokul, District Hardoi.

¶5Learned counsel for the applicant submitted that fact witnesses have been examined before the trial Court and both P.W.-1 i.e, the prosecutrix and P.W.-2 i.e the mother of prosecutrix have been declared hostile. The prosecutrix has deposed before the Court that two unknown persons gagged her mouth and committed rape with her. She further deposed before the Court that police had not recorded her statement. She further deposed that the applicant was not known to her and he had not committed rape with her. The prosecutrix has denied the entire version of the prosecution case. Similarly, P.W.-2,the mother of prosecutrix has been declared hostile and she has not supported the prosecution case.

¶6Learned counsel for the applicant further submitted that since the fact witnesses, P.W.-1 and P.W.-2 i.e. have been declared hostile, the presumption goes in favour of the applicant at the present moment and it cannot be inferred that the applicant has committed any offence, and there is no likelihood of the trial being concluded in the near future, thus, the applicant is entitled to be released on bail. There is no criminal history against the applicant and he is languishing in jail since 10.02.2021.

¶7Learned A.G.A has opposed the prayer of bail of the applicant but he could not dispute the fact that P.W.-1, prosecutrix and P.W.-2, the mother of prosecutrix have been declared hostile.

¶8Considering the facts and circumstances of the case, perusing the record, also considering the nature of allegations, arguments advanced by the learned counsel for the parties, the argument that P.W.-1 i.e. the prosecutrix as well as P.W.-2, i.e. mother of prosecutrix have been declared hostile and they have not supported the prosecution case, I find it to be a fit case for grant of bail.

¶9Accordingly, the bail application is allowed.

¶10Let the applicant Viru Alias Birendra Singh S/O Prem Kumar Singh 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 sufÏcient cause, the trial court may proceed against her 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 sufÏcient 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.

¶11It 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 :- 2.11.2023 DiVYa High Court of Judicature at Allahabad, Lucknow Bench