Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8674 of 2018 Applicant :- Azhar Husen Opposite Party :- State Of U.P.
Counsel for Applicant :- Mirza Ali Zulfaqar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a second application for bail on behalf of Azhar Husen who is also known by the name Azhar Ali in connection with Case Crime No.2354 of 2017 under Sections 452, 376-D, 306, 506 IPC and Section 3/4 POCSO Act, P.S. Khalilabad, District Sant Kabir Nagar.
Heard Sri Mirza Ali Zulfaqar, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA on behalf of the State.
The first application for bail being Criminal Misc. Bail Application No. 49938 of 2017 was rejected by this Court vide order dated 08.01.2018 with a direction to the Magistrate to commit the case for trial and with a direction that the trial court shall from the date of committal endevour and conclude the trial within a period of six months, besides issuing other directions to expedite trial.
The present second bail application has been made renewing the plea for bail on the basis that the only witness of fact, the first informant, who is the mother of the victim Phoolmati has deposed before the trial court and has also been cross-examined in Special Sessions Trial No. 217 of 2017 pending before the Court of Additional Sessions Judge/FTC-1, Sant Kabir Nagar on 09.02.2018.
The learned counsel for the applicant has taken the Court through the evidence of PW-1; the relevant part of her examination- in-chief and also the cross-examination (in Hindi Vernacular) are extracted below:
“mDr ?kVuk esa vfHk;qDr vtgj vyh tks esjs xkao dk gS] ?kVuk esa 'kkfey ugha Fkk] izkFkZuk i= fy[kus okys us dSls vtgj dk uke fy[k fn;k] eSa ugha crk ldrhA vtgj dk uke eSaus ugha fy[kk;k Fkk] ugha eSaus vtgj ds fo:) iqfyl dks dksbZ c;ku nh FkhA vxj fdlh us vtgj dk uke fy[kk gS rks og xyr gSA og funksZ"k gSA og ?kVuk esa lfEefyr ugha Fkk] eSaus njksxk th dks Hkh vtgj vyh dk uke ugha crk;k FkkA”
“xokg dks 161 lh-vkj-ih-lh- dk c;ku i<+dj crk;k x;k rks xokg dgh fd eSa dsoy nhid dqekj dk uke njksxk th dks crk;k Fkk] njksxk th us vtgj vyh dk uke dSls c<+k fn;k eSa ugha crk ldrhA ;g dguk xyr gS fd vfHk0 vtgj vyh esjs xkao dk gS] xkao dk gksus ds ukrs mls cpkus ds fy;s lgh rF; tku cw>dj U;k;ky; esa ugha crk jgh gwa] vkSj >wB cksy jgh gwaA ;g dguk xyr gS fd vfHk0 vtgj vyh ls uktk;t ykHk ysdj lgh rF; U;k;ky; esa ugha crk jgh gS vkSj >wB cksy jgh gS] ;g Hkh dguk xyr gS fd eSa tkucw>dj vtgj vyh dks cpk jgh gSA ;g dguk xyr gS fd eSa vkt vnkyr esa vfHk0 vtgj vyh ds ncko esa >wBk c;ku ns jgh gwaA”
It is stated by the learned counsel for the applicant that there is no other witness of fact except Phoolmati, other witness being formal.
The aforesaid fact is not disputed by the learned AGA who has made the aforesaid statement at the Bar after perusing the charge sheet and other related documents.
The submission of the learned counsel for the applicant is that looking to the evidence in the dock on behalf of the prosecution of the sole witness of fact, there are good chances of the case ending in acquittal prima facie so that there would be no justification to keep the applicant in detention any further pending trial.
Learned AGA has opposed the prayer for bail with the submission that the offence is serious and involves gang rape of a minor besides offence under the POCSO Act. However, the learned AGA does not dispute the fact that the sole prosecution witness of fact has not supported the prosecution story in her dock evidence.
Considering the overall facts and circumstances of the case, the nature of evidence, in particular, the evidence of PW-1, the first informant, rendered in the dock during trial but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
It is made clear that anything said in this order will not influence the trial court in arriving at its conclusions based on evidence led at the trial as a whole.
Accordingly, the bail application stands allowed.
Let the applicant Azhar Husen involved in Case Crime No. 2354 of 2017 under Sections 452, 376-D, 306, 506 IPC and Section 3/4 POCSO Act, P.S. Khalilabad, District Sant Kabir Nagar be released on bail on executing a 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 :- 29.3.2018 Deepak