Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44964 of 2018 Applicant :- Akash Opposite Party :- State Of U.P.
Counsel for Applicant :- Chandra Bhan Gupta,Anand Srivastava 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 connection with Case Crime No. 142 of 2018, under Section 363,366,376 I.P.C. and Section 3/4 POCSO Act, Police Station Indergarh, District Kannauj.
Heard Sri Anand Srivastava, learned counsel for the applicant and Sri Akhilesh Mishra, learned AGA alongwith Sri Ashutosh Diljan appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of age of the prosecutrix, as would be evident from a perusal of the medical report dated 18.9.2018, based on an ossification test that has been produced before the Court as part of the case diary, the prosecutrix has been opined to be above 18 years. It is submitted that the prosecutrix is, thus, clearly a major, and, provisions of the POCSO Act would not be attracted. Learned counsel has invited the attention of the Court to the fact that the prosecutrix eloped with the applicant with whom she was in love on 29.8.2018 in the wee hours of the morning. In this connection, he has invited the attention of the Court to the statement of the prosecutrix under Section 161 Cr.P.C. dated 11.9.2018, where she has said that as she had become friends with the applicant, she went alongwith him on 29.08.2018, and, that the applicant did not do anything to violate her. The said statement is absolutely exculpatory. To like effect is the statement of the prosecutrix recorded by the doctor during her medico legal examination conducted on 12.09.2018, where the prosecutrix has been reported by the Doctor to have said (in Hindi vernacular):
dapu 29@8@18 dks lqcg 4 cts 'kkSp ds fy, x;h Fkh fQj vkdk'k ds lkFk viuh ethZ ls pyh xbZ rFkk mlds lkFk viuh ethZ ls jghA Learned counsel has also pointed out that the parties approached this Court and filed Civil Miscellaneous Writ C No. 30680 of 2018 seeking civil protection of their rights. However, in that case, the father, the first informant put in appearance and sought time of the Court to produce evidence about the fact that the prosecutrix was a minor. It is alleged that once the couple leaved the court they were abducted by musclemen brought by the prosecutrix's father and carried back to District Kannauj, where the police in connivance with the father showed a false arrest at Bharahala Tiraha, District Kannauj. It is pointed out that the prosecutrix has spoken inculpatory against the applicant under pressure of the family and the police in her statement under Section 164 Cr.P.C. that is contrary to all earlier statements of the prosecutrix and her conduct in approaching this Court and filing a writ petition supported by a joint affidavit of the applicant and the prosecutrix.
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 is prima facie a major, her stand in the statement under Section 161 Cr.P.C., the statement made to the doctor and her action in filing a writ petition to protect her marriage before this Court are all in support of a relationship and intended marriage to the applicant except the statement under Section 164 CrPC which is inculpatory, 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 involved in Case Crime No. 142 of 2018, under Section 363,366,376 I.P.C. and Section 3/4 POCSO Act, Police Station Indergarh, District Kannauj 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 :- 27.11.2018 BKM/-