Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33457 of 2018 Applicant :- Aizaz Opposite Party :- State Of U.P. Counsel for Applicant :- Pawan Kumar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Supplementary affidavit filed today is taken on record.
This is an application for bail on behalf of the applicant, Aizaz in connection with Case Crime No. 135 of 2018, under Sections 376 I.P.C. and 3/4 POCSO Act, P.S. Brijmanganj, District Maharajganj.
Heard Sri Pawan Kumar, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., alongwith Sri Abhinav Tripathi appearing for the State.
The submission of the learned counsel for the applicant is that the prosecutrix, at whose instance the applicant has been reported to the police in this crime, had spoken inculpatory against him in her statement under Section 164 Cr.P.C., to the police, and, to the doctor as also during investigation. However, in the ongoing trial, in her dock evidence recorded on 16.11.2018 in case No. 229 of 2018 before the Additional Sessions Judge, Court No. 1 Maharajganj, she has disowned the prosecution. She has categorically said that the applicant never ravished her. The examination-in-chief is short and categorical. She was declared hostile and subjected to a searching cross examination by the prosecution, where she has stood by her exculpatory stand for the applicant. She has said that the applicant never ravished her. On being confronted by the statements recorded by the police, she said that she never made them, and, on being confronted by the statement before the Magistrate, she has said that the same was made on account of threats extended to her to depose inculpatory by the lady police constable and the Daroga. She was also cross examined by the defence, where she has reiterated her stand that her statement to the Magistrate was under threats extended by the Daroga Ji and the lady constable. She has also said that there was a dispute between the applicant and her family members over a right to drainage. It is also said that some natives of the village made her aunt (Bua) to put her thumb impression to a written application, on the basis of which the present case has been registered against the applicant. The submission of the learned counsel for the applicant is that looking to the aforesaid dock evidence of the prosecutrix, there is no justification to detain the applicant pending trial.
Learned A.G.A. has opposed the prayer for bail and submits that so far as the dock evidence of the prosecutrix is concerned, it is exculpatory, but this Court cannot look into it, as that is within the province of the trial court.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix has spoken exculpatory in her evidence during trial, but without expressing any opinion on merits, this Court, finds it to be a fit case for bail.
The bail application, accordingly, stands allowed.
Let the applicant Aizaz involved in Case Crime No. 135 of 2018, under Sections 376 I.P.C. and 3/4 POCSO Act, P.S. Brijmanganj, District Maharajganj be released on bail on executing his 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 :- 21.12.2018 BKM/-