Court No. - 7
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4623 of 2019 Applicant :- Anil Opposite Party :- State Of U.P.
Counsel for Applicant :- Santosh Kumar Shukla,Akhileshwar Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a second bail application on behalf of the applicant Anil in Case Crime No.534 of 2017, under Sections 376, 354, 506, IPC and Section 3/4 and 7/8 POCSO Act, Police Station Kadar Chawk, District Budaun. The first application for bail being Criminal Misc. Bail Application No.21751 of 2018 was rejected by me for non prosecution. This bail application is, therefore, for all practical purposes, a first application.
Heard Sri Santosh Kumar Shukla, 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 in the FIR, which is an informed version, lodged by the mother of the two prosecutrixs 'A' and 'B' who are sisters, it has been alleged that the applicant along with the co-accused non-applicant, Pankaj and Pradeep outraged their modesty. It is emphasized that in the FIR lodged on 12.11.2017, regarding the incident dated 7.11.2017, there is not a word mentioned about the allegation of rape. In the statements of the two prosecutrixs A and B, recorded under Section 161 Cr.P.C. by the police also, there is no allegation of rape. The said statement has been recorded on 7.12.2017. It is submitted by learned counsel for the applicant that in the statement under Section 164 Cr.P.C., which has been recorded after a period of nine days on 21.12.2017, there is an allegation of ravishing the two prosecutrixs against the applicant and the co-accused Pradeep. It is argued by learned counsel for the applicant that this is a clear improvement of the prosecution case, which not only improves it inconsistently, but generically changes the case from one of molestation to a case of rape. It is the applicant's submission that looking to the changed and shifting nature of the prosecution story, the same is not at all dependable on the basis of which the applicant may be detained, pending trial. It is also pointed out that prosecutrix 'A', according to the medico legal estimation of her age made by the Chief Medical Officer, Budaun vide his certificate dated 11.12.2017 (that finds place at page 26 of the first bail application), has been opined to be aged about 18 years. The aforesaid assessment of age is based on an ossification test. In the submission of learned counsel for the applicant, the prosecutrix 'A' is clearly a major and, therefore, the provisions of the POCSO Act would not be attracted. Likewise, in the case of prosecutrix 'B' the Chief Medical Officer, Budaun has estimated her to be aged about 16 years vide his certificate dated 11.12.2017 (a copy of which is placed at page 31 of the papers of the first bail application). It is submitted that the said assessment of age is based on an ossification test. Learned counsel for the applicant has submitted that making allowance for the usual variation of two years, or even one, the prosecutrix 'B' would reckon to be a major, where also the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant submits that the applicant is in jail since 17.01.2018. He is a respectable man with no criminal history.
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 in the FIR lodged by the mother of the prosecutrix five days after the occurrence, but an allegation of molestation alone, the fact that in the statements of the two prosecutrixs recorded under Section 161 Cr.P.C., there is no allegation of rape but of molestation, the fact that an allegation of rape has been introduced by both the prosecutrixs for the first time in their statements under Section 164 Cr.P.C., the fact that both the prosecutrixs are prima facie major where the provisions of the POCSO Act would not be attracted, 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 Anil in Case Crime No.534 of 2017, under Sections 376, 354, 506, IPC and Section 3/4 and 7/8 POCSO Act, Police Station Kadar Chawk, District Budaun 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 :- 25.2.2019 NSC