Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45418 of 2017 Applicant :- Arvind Kumar @ Monu Opposite Party :- State Of U.P.
Counsel for Applicant :- Parvesh Kumar Pandey,Shre Ram Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
Vakalatnama filed by Sri Vishal Jaiswal, Advocate on behalf of first informant today in the Court, is taken on record.
Heard learned counsel for the applicant, learned counsel for the first informant, learned A.G.A. and perused the record.
Learned counsel for the applicant contends that the applicant has been falsely implicated for enticing away the 16 years old daughter of first informant; that the applicant is not named in F.I.R. according to which, the prosecutrix had gone to attend the call of nature at 4:00 p.m. on 8.8.2017 and did not return; that the recovery of prosecutrix has been made on 5.9.2017 with applicant and in her statements under sections 161 and 164 Cr.P.C., the prosecutrix has categorically stated that she came out of her house all alone and came to Matgaon then to Allahabad then by train to Delhi and then to Ambala, from where she called the applicant and he fetched her to Ludhiana, where they lived in a rented accommodation and established physical relations repeatedly and everything was done with her consent and they were talking each other since last 3 years; that the prosecutrix has stated that applicant never established physical relations forcibly and the F.I.R. has been lodged by her father with wrong allegations; that the prosecutrix is major and matured girl and her radiological age has been determined between 16-
18 years; that even according to high school certificate where her date of birth is mentioned as 4.5.2001, she was above 16 years of age; that applicant has not committed any offence of rape on the prosecutrix and did not entice away her; that the medical examination report does not support the prosecution case and committal of rape with her; that from the averments made in statements, the prosecutrix appears to be consenting party; that the applicant has no criminal history; that the applicant undertakes that he will not misuse the liberty of bail; that the applicant is in custody since 5.9.2017.
Learned A.G.A. and learned counsel for the first informant vehemently opposed the prayer of bail and contended that as per high school certificate the prosecutrix was below 18 years of age and sexual intercourse with her even with her consent comes with the definition of rape.
Upon hearing learned counsel and perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Arvind Kumar @ Monu be released on bail in Case Crime No.344 of 2017, under Sections 363, 376(2)Gha IPC and 3/4 POCSO Act, P.S. Puramufti, District Kaushambi on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 28.11.2017 Tamang