Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45614 of 2018 Applicant :- Ajay Opposite Party :- State Of U.P. Counsel for Applicant :- Hitesh Pachori Counsel for Opposite Party :- G.A
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Ajay in Case Crime No.736 of 2018, under Sections 363, 366, 376 IPC, and Section 3/4 POCSO Act, Police Station Etmaddaoula, District Agra.
Heard Sri Hitesh Pachori, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico legal report dated 25.8.2018, about the prosecutrix's age, based on an ossification test her age has been estimated to be 16 years. It is submitted that giving the usual allowance of two years, or even one, to the benefit of the accused, the prosecutrix would reckon to be a major. It is further submitted that looking to the aforesaid fact, the provisions of the POCSO Act would not be attracted. It is submitted that the prosecutrix in her statement under Section 161 Cr.P.C., has acknowledged that she went along with the applicant from Agra of her free will to different stations like Gwalior, Nasik and Mumbai and stayed overnight with him. It is also said that the two had established carnal relations, though she said in her statement under Section 161 Cr.P.C., that she is aged about 14 years. In the statement made to the doctor in confidence during her medico legal examination, she has categorically said that on 19.8.2018, she went along with the applicant proceeding from Rambagh, Agra, where she called Ajay, the applicant. It is said that she went along with Ajay by bus to Gwalior, then to Indore, Nasik and in the last to Mumbai. At Mumbai, the two stayed in a duplex accommodation at the first floor. It is said specifically that she had carnal relations with Ajay twice, of her free will. Learned counsel for the applicant has pointed out that by contrast in the statement under Section 164 Cr.P.C., the prosecutrix has spoken inculpatory, under family pressure, alleging that Ajay called her over to Rambagh, Agra, asking her to bring along Rs. 30,000/-, and, thereafter administered some deleterious substance, which caused her to go unconscious. When she regained her senses, at Indore, she told him that she had to go back home. It is also said that the applicant ravished her on board bus, but as she was unconscious, she did not know anything. It is submitted by learned counsel for the applicant that the statement under Section 164 Cr.P.C., is not only one made under family and social pressure, but inherently such which is incredible. It is also submitted that read in the context of the statement under Section 161 Cr.P.C., and that made to the doctor, it is transparently clear that the applicant has been falsely implicated at the behest of prosecutrix's family.
Learned AGA has opposed the prayer for bail and emphasised that the prosecutrix has come up with a categorical allegation of rape in her statement under Section 164 Cr.P.C. He, however, not disputed the fact that the prosecutrix has spoken exculpatory in her statement under Section 161 Cr.P.C., and that made to the doctor.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the prosecutrix is prima facie by the medico legal estimation of her age, is a major and the stand of the prosecutrix is shifting and inconsistent across various statements, 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 in Case Crime No.736 of 2018, under Sections 363, 366, 376 IPC, and Section 3/4 POCSO Act, Police Station Etmaddaoula, District Agra 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/NSC