IMPORTANT POINT
Timely cross-examination is essential for a fair trial; delays can compromise witness integrity and affect justice.

JUDGMENT :

Krishan Pahal, J.

1. Heard Sri Yadavendra Dwivedi, learned counsel for the applicant and Sri Jai Kishan Chaurasia, learned State Law Officer and also perused the record.

2. This is the second bail application moved on behalf of the applicant seeking bail in Case Crime No. 238 of 2020, under Sections 376, 506, 452 of I.P.C. and Sections 3/4 of POCSO Act, Police Station - Shivli, District Kanpur Dehat, during the pendency of trial.

3. The first bail application of the applicant was rejected by the coordinate Bench of this Court vide order dated 01.09.2021 passed in Criminal Misc. Bail Application No. 41070 of 2020.

ARGUMENTS ON BEHALF OF APPLICANT :

4. As a new ground, learned counsel for the applicant has stated that PW-1 Informant and PW-2 Victim have been examined in Court and they have not supported the prosecution story, as such, there is no likelihood of conviction of the applicant in the instant case.

5. The applicant is incarcerated in jail since 13.05.2020, as such, more than 4 years have been passed. His fundamental rights enshrined in Article 21 of the Constitution of India stand violated, as such, he is entitled for bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with trial.

ARGUMENTS ON BEHALF OF STATE LAW OFFICER :

6. Per contra, learned State Law Officer has vehemently opposed the bail application by stating that the statement of the victim recorded by the trial court is intact as her examination-in-chief and cross examination were taken up on 18.04.2024 and she has categorically nominated the applicant to have barged into her house and committed rape with her. The said statement stands unimpeached during her cross-examination taken up the same day but the cross-examination has been deferred at the request of counsel for the applicant and further cross-examination was taken up about 2 months and 9 days thereafter i.e. on 27.06.2024 and the victim had not supported the prosecution story in it. The said act of the applicant for not completing the cross-examination the same day and deferring the matter for more than two months is an act to somehow win over the witness, as such, the applicant is not entitled for bail.

CONCLUSION :

7. Supreme Court, in the case of C. Muniappan and Others v. State of Tamil Nadu 2010 INSC 553, has observed thus:

“81. It is settled legal proposition that : (Khujji case, SCC p. 635, para 6)

‘6. ... the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.’

82. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360] this Court held that (at SCC p. 363, para 7) evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543], Gagan Kanojia v. State of Punjab, (2006) 13 SCC 516], Radha Mohan Singh v. State of U.P.,(2006) 2 SCC 450], Sarvesh Narain Shukla v. Daroga Singh, (2007) 13 SCC 360] and Subbu Singh v. State, (2009) 6 SCC 462.

8. In the case of Vinod Kumar v. State of Punjab 2014 INSC 670, the Supreme Court has observed thus:

“51. It is necessary, though painful, to note that PW 7 was examined-in-chief on 30-9-1999 and was cross-examined on 25-5-2001, almost after 1 year and 8 months. The delay in said cross-examination, as we have stated earlier had given enough time for prevarication due to many a reason. A fair trial is to be fair both to the defence and the prosecution as well as to the victim. An offence r