Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39384 of 2018 Applicant :- Ashfak Ahmad Opposite Party :- State Of U.P.
Counsel for Applicant :- Mohd. Shabbir,Mohd Shamim Khan Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Ashfak Ahmad in Case Crime No.105 of 2018, under Sections 363, 366, 376-D IPC, and Section 6 POCSO Act, Police Station, Shergarh, District Bareilly.
Heard Sri Shamim Khan, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Avanish Shukla, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the age of the prosecutrix, as determined by a Medical Board of doctors including the Chief Medical Officer, through a certificate dated 25.5.2018, based on an ossification test is about 19 years. It is submitted that the prosecutrix is, therefore, clearly a major and the provisions of the POCSO Act are not attracted. It is submitted that according to the prosecution case, the prosecutrix was enticed away by the applicant and a co- accused on 18.2.2018, but the FIR has come to be lodged as late as on 22.5.2018, after a delay of almost hundred days. It is submitted that in case the prosecutrix had been forcibly taken away by the applicant and the co-accused, as narrated in the FIR and the statement of the prosecutrix under Section 164 Cr.P.C., a prompt FIR would have to be lodged by the father and other family members. It is submitted that in fact, the prosecutrix, who is an adult eloped with the applicant and married him in accordance with the Muslim rites regarding which a Nikahanama has been filed as Annexure-SA-1 to the supplementary affidavit. The Nikahanama is a document dated 20.2.2018. It is further pointed out that in the medico legal report, there is no such injury noticed that is consistent with a case of rape, though, the statement of the prosecutrix is consistent about rape. He submits that the circumstances and the conduct of the prosecutrix are not at all compatible with her statement and the FIR version.
Learned AGA has opposed the prayer for bail and submits that the FIR version has been supported by the statement of the prosecutrix under Sections 161, 164 Cr.P.C., and the statement made to the doctor and, therefore, no case for bail has been made out.
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, going by the medico legal estimation of her age, is prima facie a major, the fact that the FIR has been lodged after an unexplained delay of hundred days, which is not compatible with the prosecution story at all, there is a case of marriage between the applicant and the prosecutrix where the applicant has alleged a case of elopement, 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 Ashfak Ahmad in Case Crime No.105 of 2018, under Sections 363, 366, 376-D IPC, and Section 6 POCSO Act, Police Station, Shergarh, District Bareilly 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 :- 29.11.2018 NSC