Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41250 of 2018 Applicant :- Afsar Ali @ Rahul Opposite Party :- State Of U.P.
Counsel for Applicant :- Ajit Manit Tripathi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Afsar Ali @ Rahul in connection with Case Crime No.165 of 2018, under Sections 363, 366, 376 I.P.C. and 3/4 of Prevention of Children From Sexual Offences (POCSO) Act, P.S. G.R.P., District Gorakhpur.
Heard Sri Ajit Mani Tripathi, learned counsel for the applicant and Sri M.P.S.Gaur, learned AGA along with Sri Abhinav Tripathi, learned counsel on behalf of the State.
The submission of learned counsel for the applicant is that the prosecutrix going by the medico legal estimation of her age is a major estimated to be about 18 years. He has invited the attention of the Court to the medico legal report dated 11.06.2018, in this connection, based on an Ossification Test. Learned counsel has further drawn the attention of the Court to the statement of the prosecutrix recorded under Section 164 Cr.P.C., wherein the prosecutrix has categorically said that she left home of her own accord and accompanied the applicant to Lucknow; she also said that she called the applicant over phone to the railway station. It is further said thereafter they proceeded to Mumbai. She further said that fifteen days later they returned to do a Court marriage at Gorakhpur where they were apprehended by the police. It is also said in the statement that the applicant did not take her away by any blandishment. It is acknowledged that the parties have had physical relations by consent of the prosecutrix. Learned counsel submits that the statement of the prosecutrix recorded under Section 164 Cr.P.C., is absolutely exculpatory.
Learned AGA has opposed the prayer for bail but does not dispute the fact that the age of the prosecutrix evident from the medico legal report shows her to be 18 years and is a major. It is further not disputed that the statement of the prosecutrix recorded under Section 164 Cr.P.C., is exculpatory.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of punishment, the evidence appearing in the case, in particular, the age of the prosecutrix and statement recorded under Section 164 Cr.P.C.
that is prima facie, exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Afsar Ali @ Rahul in connection with Case Crime No.165 of 2018, under Sections 363, 366, 376 I.P.C. and 3/4 of Prevention of Children From Sexual Offences (POCSO) Act, P.S. G.R.P., District Gorakhpur be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court.
Order Date :- 29.10.2018 R./