Allahabad High Court
Vishal Rajbhar vs State Of U.P. And 3 Others on 5 January, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37001 of 2022
Applicant :- Vishal Rajbhar
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Kamal Kumar Singh
Counsel for Opposite Party :- G.A.,Mayank Krishna S Chandel,Vinod Kumar Chandel
Hon'ble Siddharth,J.
Heard Shri Kamal Kumar Singh, learned counsel for the applicant; learned A.G.A for the State and Shri Mayank Krishna S Chandel, learned counsel for the informant.
There is allegation against the applicant and another co-accused regarding the commission of offence of rape after entering into the house of the victim besides allegations under Section 5M/6 POCSO Act.
Counsel for the applicant submits that from the medical report, no evidence of the alleged offence has been found. The doctor has not given any opinion regarding the commission of the alleged offence nor in the pathological report any evidence of the alleged offence has been found. It is further submitted that applicant has been falsely implicated in this case by the mother of the victim and her neighbour Vimla. The next submission is that that there is a dispute between the family of the applicant and the informant in the village on account of village party politics. This is a case of false implication of the applicant.
The applicant is in jail since 06.05.2022 and has no criminal history to his credit.
On the other hand, learned A.G.A has opposed the prayer for bail.
Learned counsel for the informant has vehemently opposed the bail application and has filed counter affidavit. He has relied upon the judgement of Apex Court in Krishan Kumar Malik v. State of Haryana reported in 2011 0 AIR (SC) 2877 and has stated that the conviction on the sole testimony of the prosecutrix can be ordered by the Court, however, in the case law cited, the Apex Court found that the deposition of prosecutrix was not reliable and, therefore, the conviction order of the High Court was set aside and quashed.
After hearing rival contentions, this Court finds that the judgement relied upon by the learned counsel for the informant has been passed after the decision of the trial court and the High Court. At the stage of the bail application, the material on record does not prove commission of the alleged offence. It is improbable that where there are two eye-witnesses stating that the offence of rape was committed before them, no medical or any pathological evidence is found.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant-Vishal Rajbhar, involved in Case Crime No.238 of 2022, under Sections-376-AB, 452, 506 IPC & Section 5M/6 POCSO Act, Police Station-Sarai Lakhansi, District-Mau, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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.
(v) 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year from the date of production of certified copy of this order.
Order Date :- 5.1.2023
Jyotsana
