Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46655 of 2019 Applicant :- Ankit Thathera Opposite Party :- State of U.P.
Counsel for Applicant :- Pradeep Chauhan,Shiva Kant Srivastava Counsel for Opposite Party :- G.A.,Yashpal Yadav
Hon'ble Siddharth,J.
Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Ankit Thathera, with a prayer to release him on bail in Case Crime No. 30 of 2019, under Sections 363, 366, 376 IPC and 3/4 POCSO Act, Police Station Nizamabad, District- Azamgarh, during pendency of trial.
Submission is that age of the victim, as per medical report, is 18 years and as per high school certificate, her age is 15 years and 4 months. In her statement under Section 164 Cr.P.C., victim has claimed her age as 18 years. She eloped with the applicant and has married him and stayed with him for 68 days in Gujarat. There is no sign of rape found in the medical report of the victim. In supplementary report, there is no evidence of rape against the applicant. The applicant alleges false implication. The applicant has no criminal history to his credit and he is languishing in jail since 17.8.2019, In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned counsel for the informant has opposed the prayer for bail of the applicant and submitted that age of the victim, as per high school certificate, is 15 years and 4 months. She is minor. There is no question of consent. Therefore, he is not entitled to be enlarged on bail.
Learned AGA has also supported the arguments advanced by learned counsel for the informant.
After hearing rival contentions, this Court finds that there is considerable difference of age in the medical report and high school certificate of the victim. The question whether the certificate of high school of the victim produced before this Court is genuine and the date of birth mentioned is also correct or incorrect cannot be determined at this stage. The medical report clearly proves that victim is 18 years of age and therefore, her age of consent can be presumed. The Apex Court in the case of Smt. Indra @ Suhani Vs. State of U.P. and others, (2013) 6 ADJ 195 (Habeas Corpus Writ Petition No. 24814 of 2013), has disproved the rejection of prayer of the victim for release from Nari Niketan on the ground that from school record, her age has been found to be below the age of consent, but in the medical report, her age was found to be above 18 years and therefore, the Apex Court allowed the victim to go with her alleged husband. Even otherwise at this stage, this issue cannot be decided by this Court and shall be decided by the trial court during the trial.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 29.11.2019 Ruchi Agrahari