Allahabad High Court
Vijay Yadav ( Second Bail ) vs State Of U.P. on 22 July, 2019
Author: Anant Kumar
Bench: Anant Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- BAIL No. - 9071 of 2017 Applicant :- Vijay Yadav ( Second Bail ) Opposite Party :- State Of U.P. Counsel for Applicant :- Neeta Singh Chandel Counsel for Opposite Party :- Govt. Advocate Hon'ble Anant Kumar,J.
Supplementary affidavit filed today is taken on record.
This is second bail application. First Bail Application No. 4439 of 2014 was rejected by a co-ordinate bench of this Court vide order dated 14.07.2017 for want of prosecution.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant in Case Crime No.228 of 2013, under Sections 376, 342 I.P.C. & Section 3A/4 POCSO Act, Police Station Mohammadpur Khala, District Barabanki.
As per version of F.I.R. on 06.07.2013 prosecutrix had gone to ease herself in the field where present applicant caught her and took her to his house where present applicant committed rape upon the prosecutrix. Thereafter, after sometime his father came there, then the applicant left the place and his father also raped her. Since the victim did not return her home, a search was made, then she was recovered from the house of the applicant. It is shown that this occurrence had taken place at 3.00 A.M. on 06.07.2013. Then this F.I.R. was lodged. It is submitted by learned counsel for the applicant that applicant has been falsely implicated in this case due to some enmity regarding property. Today through supplementary affidavit statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. as well as copy of the injury report of the victim have been filed. In her statement under Section 161 Cr.P.C. prosecutrix has stated that she was studying in his house till late in the night, thereafter she slept. At about 1.00 A.M. father of the present applicant came there and forcibly took her to his house and had laid her on his bed and he instructed his son (present applicant) to rape her but when he refused, then the father of the applicant raped her and she was put in a Dahri (a pot meant for storing food grains in the villages) where she was later on recovered. However, in her statement under Section 164 Cr.P.C. she stated that on the date of occurrence in the morning she had gone to ease herself along with her mother and while returning her mother stopped back and she was alone returning home. On the way present applicant as well as his father had caught her and took her to their house where she was raped by present applicant and both father and son torn her clothes. In her medical examination report doctor has found no mark of injury on her private part. Menstrual bleeding was found present. A small injury was found on the joint of thumb. Applicant is in jail since 06.07.2013. There is mark difference in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. It is also submitted that the trial has not been concluded.
Learned A.G.A has, however, opposed the prayer for grant of bail but he has not disputed the above contention made by the learned counsel for the accused-applicant.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Vijay Yadav) be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to 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.
Order Date :- 22.7.2019 ML/-