Court No. - 53
Case :- CRIMINAL APPEAL No. - 1930 of 2018 Appellant :- Ankit Mishra Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Rajesh Yadav,Rakesh Kumar Tripathi,Ruchi Mishra,V.K.S. Somvanshi Counsel for Respondent :- G.A.,Ansar Ahmad
Hon'ble Umesh Chandra Tripathi,J.
Supplementary affidavit has been filed by Sri V.K.S. Somvanshi, learned counsel for the appellant in the Court today, the same is taken on record.
Heard learned counsel for the parties and perused the record.
This criminal appeal under Section 14A (2) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act, 1989') has been filed on behalf of the appellant, challenging the order dated 26.08.2017 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 14, Kanpur Nagar in Bail Application No. 1102 of 2017 (1728 of 2017) (Ankit Mishra v. State of U.P.), arising out of Case Crime No. 1009 of 2017, under Sections 363, 376, 506 of the Indian Penal Code, 1860 and Section 3(2)(5) of Act, 1989, Police Station - Kalyanpur, District - Kanpur Nagar, seeking bail in the aforesaid sections.
As per prosecution version, the victim was a student of Class XI. On 12.09.2017, she had gone to a coaching institute. Later on, she did not return. On 13.09.2017 at about 03.40 P.M., the informant lodged first information report in this reference against unknown persons.
Learned counsel for the appellant contended that the victim is major. The mother of the victim admitted before the Court that her second marriage was solemnized in the year 2002. The victim was born out of her first wedlock. Accordingly, the victim was born before the year 2002. The date of birth of the victim mentioned in her school certificate is wrong. The prosecution has failed to get the ossification test of the victim done for determination of her age. The victim had gone with the appellant voluntarily and lived with him for two days. During her stay with the appellant, she did not made any alarm. There is no injury on the person of the prosecutrix, either internal or external. Medical evidence does not corroborate the fact of rape on the prosecutrix. Accordingly, no offence is made out against the appellant. He further contended that the appellant bears no criminal antecedents and is languishing in jail since 25.10.2017.
Per contra, learned counsel for private-respondent and learned A.G.A. opposed the prayer for bail and submitted that there is no infirmity or illegality in the impugned order passed by the trial court. As per high school certificate, date of birth of the victim is 01.01.2003. Accordingly, she is minor.
In her statement under Section 164 of Cr.P.C., 1973, the victim has stated that on the day of the occurrence at 06.00 P.M., the appellant met her and by deceiving her, he took her firstly on a motorcycle, thereafter in a car and thereafter in a truck. She was taken by the appellant to Auraiya by truck. Later on, she went to Kanpur Nagar at her residence.
Without commenting on the merits of the case, considering the facts and circumstances of the case, I am of the view that the bail application filed before the court below deserves to allowed. It is ordered accordingly.
In the result, the appeal succeeds and the same stands allowed. Impugned order dated 26.08.2017 passed by Special Judge (POCSO Act)/Additional Sessions Judge, Court No. 14, Kanpur Nagar is hereby set aside.
Let the appellant - Ankit Mishra be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned.
Order Date :- 30.1.2019 I. Batabyal