Allahabad High Court
Surendra Kumar Vishwakarma @ Gulashan vs State Of U.P. on 12 November, 2014
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 54 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29920 of 2014 Applicant :- Surendra Kumar Vishwakarma @ Gulashan Opposite Party :- State Of U.P. Counsel for Applicant :- Ravi Srivastava Counsel for Opposite Party :- Govt.Advocate Hon'ble Ramesh Sinha,J.
Heard Sri Ravi Prakash, learned counsel for the applicant and Sri Manish Dev, learned AGA for the State and perused the record.
It has been submitted by the learned counsel for the applicant that as per the medical report there was no injury in the body of the victim and as per medical opinion, prosecutrix is 16 to 18 years. The law law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. Although, she has made an allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances is titally belies the prosecution case as well as the statement of the victim recorded under section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. He further submits that it is not a case of taking away or enticing away the prosecutrix as from a perusal of her statement under Section 164. Cr.P.C.. It is apparent that she has voluntarily eloped with the applicant. The applicant is in jail since 4.6.2014 and has no criminal history.
Learned AGA has opposed the prayer for bail.
Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant Suirendra Kumar Vishwakarma alias Gulashan, son of Rampal Vishwakarma involved in Case Crime No. 86 of 2014 under Sections 363, 366, 376 IPC and 3/4 PACSO Act, police station Baharia, District Allahabad be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the 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.
Order Date :- 12.11.2014 SKS