Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 916 of 2019 Applicant :- Akash Opposite Party :- State Of U.P.
Counsel for Applicant :- Pankaj Sharma,Prashant Sharma Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Akash, in Case Crime No.337 of 2018 under Sections 363, 366, 376, 120-B, IPC, and Section 3/4 POCSO Act, Police Station Sasni, District Hathras.
Heard Sri Pankaj Sharma, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Sri Avanish Shukla, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age certified by the Chief Medical Officer, Hathras, vide his certificate dated 28.05.2018, based on an ossification test, she has been opined to be 16 years old. The submission of learned counsel for the applicant is that making allowance for the usual variation of two years in the medically estimated age, the prosecutrix clearly reckons to be a major. He further submits that the provisions of the POCSO Act would not be attracted. It is submitted that a perusal of the FIR shows that the same has been lodged by the prosecutrix's father after she is claimed to have been recovered by him privately from the Sasni Railway Station, where it is stated that on 16.05.2018, her daughter had been taken away by blandishment by the applicant and co- accused Roop Kishor. It is further alleged that a hunt for her lead the prosecutrix's father along with his son Sonu and another Vinod son of Bhimraj to find the prosecutrix along with the applicant and co-accused Roop Kishor sitting at the Sasni Railway Station where the two were waiting to board a train to take her somewhere. It is further said in the FIR that noticing the prosecutrix's father, the two made good their escape. In the said report, which was lodged after recovery of the prosecutrix, with a full account of facts available to her father, there is no mention of an allegation of rape by anyone. The statement of the informant, the prosecutrix's father under Section 161 Cr.P.C., also does not carry any allegation of rape against the applicant or anyone else. In the statement of the prosecutrix recorded three days later, on 28.05.2018, the prosecutrix has come up with an allegation of rape against the applicant Akash. The said statement also indicates that she was brought to the police station on 25.05.2018, when the FIR was lodged in her presence, but with no allegation of rape there or any cause assigned for its absence. In the statement made to the doctor, the prosecutrix has stated that she was taken away by the applicant and co-accused Roop Kishor by blandishment, who did something to outrage her modesty, but carries no allegation of rape. In the statement under Section 164 Cr.P.C., the prosecutrix has said that on 16.05.2018 when she was returning home after attending the call of nature, she was taken away by force by the applicant and co-accused, Roop Kishor, and carried off to Faridabad, where she stayed with them for nine days. There it is alleged that Akash ravished her. Here it is also not indicated as to why at the time of lodging of the FIR, when the prosecutrix was present along with her father, the allegation of rape did not figure. It has been argued further that in the dock evidence of the prosecutrix recorded in ongoing S.T. No.8 of 2018, recorded on 5.1.2018, before the Additional Sessions Judge, Court No.1, Hathras, though the prosecutrix has supported the prosecution in the examination-in-chief as against the applicant but in the cross-examination, she has come out to say that her father had called her from her in-laws place and she was deposing in Court at the bidding of her father. She stated that there was an animosity and dispute ongoing between her father, Roop Kishor and Akash, on account of which this case had been lodged by her father against the accused. She has specifically said that none of the accused committed the offence in question. All that is said in her cross-examination by the prosecutrix, in the submission of the learned counsel for the applicant, demolishes the prosecution case.
Learned AGA has opposed the prayer for bail.
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 there is no allegation of rape against any of the accused, including the applicant, at all in the FIR lodged by the prosecutrix's father, which is an informed FIR, the fact that there is no mention of that allegation in the statement of the first informant under Section 161 Cr.P.C., the fact that the said allegation is not there in the FIR, even though it was lodged in the prosecutrix's presence, the fact that the allegation of rape against the applicant has figured for the first time in the statement of the prosecutrix under Section 161 Cr.P.C., the fact that in the statement to the doctor, there is no allegation of rape, but one about outraging her modesty, which is again figures against the applicant in the statement under Section 164 Cr.P.C., the fact that in the dock evidence, the prosecutrix has disowned the allegation of rape against the applicant and the other co-accused during her cross-examination, 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 Akash, in Case Crime No.337 of 2018 under Sections 363, 366, 376, 120-B, IPC, and Section 3/4 POCSO Act, Police Station Sasni, District Hathras 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 :- 21.1.2019 NSC