Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48306 of 2018 Applicant :- Anurag Sharma Opposite Party :- State Of U.P.
Counsel for Applicant :- Ram Lalit Chaudhary Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Anurag Sharma in Case Crime No.18 of 2018, under Sections 363, 366, 376, 506, 120-B IPC, and Section 5/6 POCSO Act, Police Station, Harriya, District Basti.
Heard Sri Ram Lalit Chaudhary, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Sri Ashutosh Diljan, 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 done by a Board of doctors and certified by the Chief Medical Officer, Basti vide his medical report dated 23.01.2018, based on an ossification test, the prosecutrix has been opined to be aged 17 years. It is submitted that giving the usual allowance of two years, or even one, the prosecutrix would reckon to be a major. It is submitted that in this view of the matter, the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant has submitted that the prosecutrix and the applicant were into a relationship for over two years past, and, they have married. They moved to Delhi and were staying there wherefrom, they were arrested. Learned counsel for the applicant has invited the attention of the Court to the statement under Section 161 Cr.P.C., recorded by the police on 20.1.2018 soon after her recovery, where the prosecutrix has said that the applicant Anurag Sharma had been frequenting her house for the past three years, and, the two are into a relationship. It is said that she would talk to the applicant over her mobile phone and upon learning that, her family members took away her mobile phone. It is also said that thereafter, she would clandestinely talk to the applicant over her mother's mobile phone, and, also that her family members would indulge in domestic violence over the said issue, with the prosecutrix. Learned counsel has further invited the attention of the Court to the statement of the prosecutrix made to the doctor at the time of her medico legal examination, in confidence, where too, she has said that she has been in love with the applicant, for the past three years and would talk to him over her mobile phone, which her family members took away upon learning about the same. It is said that thereafter, the applicant gave her another mobile phone and the two, after planning, eloped to Delhi on 28.12.2017, where the two lived together. It is also said that on 17.1.2018, the two married, whereafter the police arrested them at Delhi. The statement before the doctor was recorded on 20.1.2018. It is pointed out that in the statement under Section 164 Cr.P.C., that was recorded on 28.12.2017, the prosecutrix has spoken absolutely inculpatory, where she has said that she was made to sniff some deleterious substance by the applicant when she had gone to answer the call of nature along with the applicant. She fell unconscious. She regained her senses to find herself on board by a train. The applicant was around who threatened her with a knife. She was conveyed by train to Delhi. It is alleged that she was forced to marry on 17.10.2018, in a temple. It is submitted by learned counsel for the applicant that the statement under Section 164 Cr.P.C., even if taken to be what it says, is drastically at a variance with the categorical statement of the prosecutrix under Section 161 Cr.P.C., and the statement made to the doctor, in confidence, during her medico legal examination. It is otherwise said that the statement under Section 164 Cr.P.C., has been recorded under threat of the prosecutrix's family members, and, is utterly false. It is further argued that the applicant has 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 the prosecutrix, is prima facie a major and the statement under Section 161 Cr.P.C., and that made to the doctor by her is exculpatory, whereas the statement under Section 164 Cr.P.C., is inculpatory that makes the prosecution case vacillating and, therefore, not one that stands on firm ground, 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 Anurag Sharma in Case Crime No.18 of 2018, under Sections 363, 366, 376, 506, 120-B IPC, and Section 5/6 POCSO Act, Police Station, Harriya, District Basti be released on bail on executing her 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 :- 18.12.2018 Deepak