Allahabad High Court
Kishan Yadav @ Krishna vs State Of U.P. And 3 Otehrs on 9 January, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41426 of 2022
Applicant :- Kishan Yadav @ Krishna
Opposite Party :- State Of U.P. And 3 Otehrs
Counsel for Applicant :- Pramod Pathak
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Srivastava
Hon'ble Krishan Pahal,J.
Heard Sri Pramod Pathak, learned counsel for the applicant as well as Dhirendra Kumar Srivastava, learned counsel for the informant and Sri Ram Mohit Yadav, learned AGA for the State and also perused the material placed on record.
The instant bail application has been filed u/s 439 of Cr.P.C. on behalf of the applicant with a prayer to release him on bail in Case Crime No. 293 of 2021, under Sections 363, 366, 376 of IPC and Sections 5J(2)/6 of POCSO Act, Police Station Cholapur, District Varanasi, during the pendency of trial.
As per prosecution story, the applicant is stated to have enticed away the minor daughter of the informant on 12.07.2021 at about 11:00 AM.
It is submitted by the learned counsel for the applicant that the applicant has been falsely implicated in the present case. The victim is a consenting party. To buttress his argument, learned counsel has placed much reliance upon the statement of the victim recorded u/s 164 Cr.P.C. wherein she has categorically stated that she was in love with the applicant and had eloped with him out of her own sweet will. Learned counsel has further stated that both of them have married and are having a baby girl who was born on 19.07.2021 out of their corporeal relationship. Learned counsel has placed much reliance on the judgments of Apex Court passed in case of Pramod Suryabhan Pawar vs. State of Maharashtra and Another reported in 2019 (9) SCC 608 and Ansaar Mohammad vs. State of Rajasthan and Another, reported in 2022 SCC OnLine SC 886, wherein it has been stated that entering into any kind of corporeal relationship with a person on the pretext of getting marriage cannot be termed as rape. Learned counsel has also stated that the applicant is ready to take care of legally wedded wife and her daughter. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. The applicant is languishing in jail since 23.01.2022 having no criminal history to his credit, deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with the trial.
Per contra, Dhirendra Kumar Srivastava, learned counsel for the informant and Sri Ram Mohit Yadav, learned AGA have vehemently opposed the bail prayer of the applicant on the ground that the victim was 16 years of age at the time of the said incident although they could not dispute the fact that a baby girl was born out of their wedlock.
POCSO was formulated to protect children under the age of 18 years from sexual exploitation. Nowadays more often than not it has become a tool for their exploitation. The Act was never meant to criminalise consensual romantic relationships between adolescents. However, this has to be seen from the facts and circumstances of each case.
Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, stage of trial and considering the complicity of accused, severity of punishment, at this stage, without expressing any opinion on the merits of the case, I find it a fit case for releasing the applicant on bail.
Without expressing any opinion on the merits, the bail application is allowed. Let the applicant Kishan Yadav @ Krishna involved in aforesaid crime 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 with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. The applicant shall take care of the wife and the baby girl born out of their wedlock immediately after his release from jail.
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.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 9.1.2023
Siddhant
