Allahabad High Court
VISHWANATH GAUNDversusSTATE OF U.P. AND 3 OTHERS
- Decided
Holding
The applicant is entitled to be released on bail.
Summary
The High Court considered a bail application filed by Vishwanath Gaund, who was arrested in a case involving alleged gang rape, false promise of marriage, and administration of poison to a minor girl, charged under several sections of the BNS Act and Sections 5 and 6 of the POCSO Act. The victim’s statements, a doctor’s report, and a medico‑legal report presented conflicting evidence, with the latter showing no injuries or sperm evidence. The applicant argued false implication, lack of prior criminal record, and that co‑accused had already been granted bail. The State opposed bail, emphasizing the seriousness of the alleged offences and the victim’s minority. Relying on the Supreme Court’s guidelines in Kapil Wadhawan (2025) and Maya Tiwari (2024), as well as the policy for bail in overcrowded prisons, the Court, without opining on the merits, held that the applicant was entitled to bail and ordered his release on bond with conditions.
Issues considered
- What is the appropriate exercise of judicial discretion in granting bail to an accused charged under the POCSO Act and other serious offences?
- Does the presence of conflicting evidence and the applicant’s lack of criminal history justify bail despite the alleged nature of the crime?
Legislation cited
- BNS Act — s. 115(2), 123, 352, 65(1), 70(2)
- Protection of Children from Sexual Offences (POCSO) Act — s. 5, 6
Subjects
- bail
- POCSO
- minor victim
- false promise of marriage
- gang rape
- medico‑legal report
- overcrowded prisons
- judicial discretion
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 28359 of 2026
Vishwanath Gaund
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Harish Kumar Tripathi
Counsel for Opposite Party(s) : G.A.
Court No. - 67
HON'BLE JITENDRA KUMAR SINHA, J.
1. Heard Sri Harish Kumar Tripathi, learned counsel for the applicant and
Sri Shiv Dutt Shukla, learned A.G.A. for the State and perused the record.
2. The instant bail application has been filed with a prayer to release the
applicant on bail in Case Crime No. 128 of 2026, under Sections 65(1),
70(2), 352, 115(2), 123 of BNS and Section 5/6 of POCSO Act, Police
Station Harpur Budahat, District Gorakhpur, during the pendency of the
trial.
3. At the very outset, learned AGA submits that as per his instructions the
first informant has refused to accept the notice.
4. It is contended by the learned counsel for the applicant that the
applicant has been falsely implicated in the present case and on perusal of
the statement of the victim recorded under Sections 180 and 183 BNSS, it
appears that she is a consenting party and she has consumed some poison
herself as the doctor who treated her has stated that he was informed that
the victim herself consumed some poisonous substance. It is further
submitted that the medico-legal report of the victim does not support the
commission of rape on her as no external or internal injury has been
found on the body of the victim and no sperm has been found in the
vaginal smear of the victim. It is further submitted co-accused Satyam,
Ram Charan and Nitin have already been granted bail by a co-ordinate
Bench of this Court. It is also submitted that the applicant has been
languishing in jail since 22.5.2026 and he is having no criminal history. It
BAIL No. 28359 of 2026
2
is lastly submitted that in case the applicant is granted bail, he will not
misuse the liberty of bail and would cooperate in the trial proceedings.
5. Per contra, learned A.G.A. has vehemently opposed the prayer for bail,
however, it is submitted that the applicant established physical
relationship with the victim on the false promise of marriage and later on
he refused to marry her. It is further submitted that the victim is a minor
girl and her date of birth is 19.8.2010 as per certificate of Class 5th and
3.5.2010 as per Class 7th, however, he does not dispute the fact that there
is no High School certificate or the certificate of school first attended and
no radio-logical examination of the victim has been conducted for her age
determination.
6. As per the allegation in the FIR, the applicant is said to have
established physical relationship with the victim on the false promise of
marriage for about two years and later on he is said to have refused to
marry her and the applicant administered some poison to her, however,
the victim in her statement under Sections 180 and 183 BNSS has stated
that the applicant called her in an agricultural field where three other
persons were present and all of them committed gang rape on her and
they also administered some poisonous substance to her, however, the
doctor in his statement has stated that he was informed that the victim
herself consumed some poison. There are two conflicting documents
regarding the age of the victim as her date of birth is 19.8.2010 as per
certificate of Class 5th and 3.5.2010 as per Class 7th, however, there is no
High School certificate or the certificate of school first attended and no
radio-logical examination of the victim has been conducted for her age
determination The medico-legal report of the victim does not support the
commission of rape on her as no external or internal injury has been
found on the body of the victim and no sperm has been found in the
vaginal smear of the victim. Co-accused Satyam, Ram Charan and Nitin
have already been granted bail by a co-ordinate Bench of this Court and t
he applicant has been languishing in jail since 22.5.2026 and he is having
no criminal history.
7. Considering the entire facts and circumstances of the case, submissions
of learned counsel for the parties and keeping in view the nature of
BAIL No. 28359 of 2026
3
offence, evidence, complicity of the accused and taking into account
overcrowded jails and heavy pendency of criminal cases before the trial
courts as well as considering the mandate of the judgement of the Apex
Court in the case of Kapil Wadhawan vs Central Bureau of Investigation
reported in 2025 SCC OnLine SC 3038 as well as guideline of this Court
in the case of Maya Tiwari Vs. State of U.P. reported in 2024 SCC
Online All 6765 regarding grant of bail and without expressing any
opinion on the merits of the case, I am of the opinion that the applicant is
entitled to be enlarged on bail.
8. Accordingly, the present application is ALLOWED.
9. Let the applicant- Vishwanath Gaund involved in the aforementioned
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:-
(i) The applicant shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the facts of the case so as
to dissuade him from disclosing such facts to the Court or to any police
officer or tamper with the evidence.
(ii) The applicant shall cooperate in the trial/investigation sincerely
without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or
commission of any crime after being released on bail.
(iv) The applicant shall attend in accordance with the conditions of the
bond executed by him.
10. In case of breach of any of the above conditions, it shall be a ground
for cancellation of bail.
11. Identity, status and residence proof of the applicant and sureties be
verified by the court concerned before the bonds are accepted.
Verification of mobile number and Aadhaar card of the applicant as well
as sureties should be verified by the court concerned.
BAIL No. 28359 of 2026
4
12. It is further directed that the trial court shall send the release order to
the concerned jail through Bail Order Management System (BOMS) to
ensure early release of the applicant.
13. Office is directed to send a copy of this order to the applicant through
concerned Jail Superintendent via e-mail or e-prison portal within 24
hours in compliance of the order of the Apex Court in the case of Policy
Strategy for Grant of Bail, In Re: Suo Motu Writ Petition (Crl.) No.4
of 2021 decided on 31.01.2023 reported in (2024) 10 SCC 685.
(Jitendra Kumar Sinha,J.)
September 9, 2026
Abhishek
Digitally signed by :-
ABHISHEK AGRAHARI
High Court of Judicature at Allahabad
Checking your session…