Court No. - 74
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15878 of 2021 Applicant :- Avnish Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kiran Tiwari,Mahesh Chandra Tiwari Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Avnish Kumar in connection with Case Crime No. 295 of 2020, under Sections 363,366 I.P.C. and Section 7/8 POCSO Act, Police Station Baragaon, District Jhansi.
Heard learned counsel for the applicant and learned A.G.A. appearing for the State.
The submission of the learned counsel for the applicant is that he has been falsely implicated in the present crime. The prosecutrix in her statement under Section 161 Cr.P.C. has clearly acknowledged the fact that she accompanied the applicant of her free will to Agra and then to Mathura. It is also said in the said statement that she has known the applicant for two-years. The statement also shows that there is no allegation by the prosecutrix about any sexual violation. It is also submitted that according to the medico legal report, the prosecutrix has been opined to be aged about 17 years which clearly makes her to be a major with the usual variation of two years on either side. It is also argued that construing the medical report about the prosecutrix's age, the provisions of POCSO Act may not be attracted. It is also urged that there is inconsistency between the prosecutrix's statement under Sections 164, 161 Cr.P.C. and that made to the doctor in confidence, which throws a cloud of doubt about the prosecution story. It is next submitted that the applicant has no criminal history and is in jail since 25.11.2020.
Learned A.G.A. has opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix prima facie has been opined to be 17 years where with the usual allowance in the medico legal estimation of age she may be reckoned to be a major, the fact that in the statement under Section 161 Cr.P.C., the prosecutrix has said that has known the applicant and went away with him to Agra, the fact that there is inconsistency prima facie between statements under Section 161 and 164 Cr.P.C. and the fact that the applicant has no criminal history, 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 Avnish Kumar involved in Case Crime No. 295 of 2020, under Sections 363,366 I.P.C. and Section 7/8 POCSO Act, Police Station Baragaon, District Jhansi 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.
(vi) The party shall file a computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vii) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(viii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 5.4.2021 Brijesh Maurya