Allahabad High Court
DURVESH @ TUNDAversusSTATE OF U.P. AND 3 OTHERS
- Decided
- Bench
- KRISHAN PAHAL
Holding
The court held that the applicant is entitled to bail.
Summary
The applicant, Durvesh @ Tunda, applied for bail in a criminal case under Sections 351(2), 140(4) of the B.N.S. and Sections 5M/6 of the P.O.C.S.O. Act. He claimed absolute innocence, stating that the key witnesses (PW‑1 to PW‑4) had turned hostile and rescinded their earlier statements. The prosecution opposed the bail but could not refute the applicant's submissions. The court, after considering the hostile nature of the witnesses and the lack of any criminal history, found a prima facie case for bail. Consequently, the bail was granted subject to a personal bond, two sureties, and conditions not to tamper with evidence or intimidate witnesses.
Issues considered
- Whether bail should be granted to the accused under the cited provisions given the hostile witnesses and lack of likelihood of conviction
Legislation cited
- B.N.S. — s. 140(4), 351(2)
- P.O.C.S.O. Act — s. 5M, 6
Subjects
- bail
- hostile witnesses
- criminal procedure
- Section 351
- Section 140
- POCSO
- presumption of innocence
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION No. - 32883 of 2026
Durvesh @ Tunda
.....Applicant(s)
Versus
State Of U.P. And 3 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Mukesh Joshi
Counsel for Opposite Party(s) : G.A.
Court No. - 68
(Sr. No.9 out of 291)
HON'BLE KRISHAN PAHAL, J.
1. List has been revised.
2. Heard Sri Mukesh Joshi, learned counsel for the applicant, Sri Jainendra
Kumar Sharma, learned counsel for the informant, Sri V.K.S. Parmar,
learned A.G.A. for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No.73 of 2026, under Sections 351(2),
140(4) B.N.S. and Section 5M/6 P.O.C.S.O. Act, Police Station
Mundapandey, District Moradabad, during the pendency of trial.
4. Learned counsel for the applicant has stated that the applicant is
absolutely innocent and has been falsely implicated in the present case. The
witnesses of fact, including the victim, have been examined as PW-1 to PW-
4 during the trial, and they have completely resiled from their earlier
statements and have been cross-examined by the Public Prosecutor after
being declared hostile. There is no likelihood of the applicant’s conviction in
the present case. The applicant has no criminal history and is in jail since
16.03.2026. He is ready to cooperate with the trial and undertakes not to
misuse the liberty of bail if released.
5. Learned counsel for the informant and learned A.G.A. have vehemently
opposed the bail application but could not dispute the submissions made by
the counsel for the applicant.
6. Considering the facts and circumstances of the case, the submissions
BAIL No. 32883 of 2026
2
made by learned counsel for the parties, and the evidence on record, taking
into consideration the fact that the witnesses of fact, i.e., PW-1 to PW-4,
have turned hostile, and without expressing any opinion on the merits of the
case, prima facie the Court is of the view that the applicant has made out a
case for bail. The bail application is allowed.
7. Let the applicant- Durvesh @ Tunda, be released on bail on furnishing a
personal bond and two sureties to the satisfaction of the court concerned,
subject to verification of sureties, with the conditions that he shall not
tamper with evidence or intimidate witnesses and shall appear before the
trial court as required.
8. Breach of any condition shall entail cancellation of bail. The observations
herein shall not affect the trial on merits.
(Krishan Pahal,J.)
September 16, 2026
(Ravi Kant)
Digitally signed by :-
RAVI KANT
High Court of Judicature at Allahabad
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