Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41174 of 2018 Applicant :- Ajay Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Raj Narayan Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
The Chief Medical Officer, Chitrakoot is present in Court in compliance with the order dated 27.11.2018. He has filed affidavit of compliance and has explained that he does not have a Radiologist in his establishment, whose presence is necessary to assess the age of the prosecutrix. Accordingly, upon receipt of this Court's order, he forwarded the prosecutrix to the Chief Medical Officer, Banda, who is the closest located Chief Medical Officer in possession of requisite medically expertise to determine the prosecutrix's age. It is submitted that the delay is on the part of the Chief Medical Officer, Banda and not on his part.
Accordingly, the explanation furnished by the Chief Medical Officer, Chitrakoot is accepted and his personal presence is exempted.
In compliance with the orders of this Court dated 27.11.2018, the Chief Medical Officer, Banda has submitted a report regarding the medico legal estimation of age of the prosecutrix through the Chief Judicial Magistrate in a sealed cover which has been opened under orders of the Court. The report is a document dated 29.11.2018. It is exhibited. Let the same be made part of record.
This is an application for bail on behalf of the applicant, Ajay Kumar in connection with Case Crime No. 298 of 2017, under Section 363,366,376 IPC and Section 4 POCSO Act, P.S.
Pahari, District Chitrakoot.
Heard Sri Raj Narayan Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA alongwith Sri Ashutosh Srivastava appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal opinion about the age of the prosecutrix, appearing in the report of the Chief Medical Officer, Banda and the other doctors of the Medical Board, she is aged about 17 years. It is submitted that giving the usual allowance of two years or even one, the prosecutrix would reckon to be a major. Learned counsel for the applicant has taken the Court through the statement of the prosecutrix recorded under Section 164 Cr.P.C. dated 07.06.2018, which shows that though, there is an allegation that Santram, Kamtoo and Ajay had taken away the prosecutrix, where Kamtoo had pointed a pistol at her father whereas Santram carried her off and later dropped her at Rajapur, but Ajay (the applicant) took her home wherefrom she was recovered by the police. It is specifically said in the statement under Section 164 Cr.P.C. that Ajay did not do anything and more specifically that Ajay (the applicant) did not ravish her. In the statement under Section 161 Cr.P.C. recorded by the police the entire version under Section 164 Cr.P.C. has been differently represented where she said that she eloped with Ajay of her free will, went to Mumbai, married in a temple, and, the two lived with each other as man and wife. It is said that nobody abetted the two in eloping, and, that the prosecutrix went away with Ajay of her free will.
The submission of the learned counsel for the applicant is that looking to the stand of the prosecutrix in the statement under Section 164 and 161 Cr.P.C. there is no allegation of rape against the applicant, and, the statement under Section 161 Cr.P.C. is wholesomely exculpatory . The prosecution, thus, stands on a very week foot, if at all. It is submitted, therefore, that it is not at all justifiable to detain the applicant in jail pending trial on the basis of such evidence garnered by the prosecution.
Learned A.G.A. has opposed the prayer for bail.
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 prima facie appears to be a major, the statement under Section 161 Cr.P.C. is wholesomely exculpatory and the statement under Section 164 Cr.P.C. is also exculpatory, so far as the, allegation of rape against the applicant is concerned, 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 Ajay Kumar involved in Case Crime No. 298 of 2017, under Section 363,366,376 IPC and Section 4 POCSO Act, P.S. Pahari, District Chitrakoot 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 :- 30.11.2018 BKM/-