Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48537 of 2018 Applicant :- Babar Opposite Party :- State Of U.P.
Counsel for Applicant :- Nazrul Islam Jafri,Gufran Ahmad Khan Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Babar in connection with Case Crime No. 521 of 2017, under Section 376, 323 I.P.C. and Section 3/4 POCSO Act, Police Station Sahaswan, District Budaun.
Heard Sri N.I. Jafri, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., alongwith Sri Ashutosh Diljan appearing for the State.
The submission of the learned counsel for the applicant is that the age of the prosecutrix, going by the age certificate dated 12.9.2017 issued by the Chief Medical Officer, Budaun, is 17 years. The said assessment is based on an ossification test. In the submission of the learned counsel for the applicant, going by the variation of two years to the benefit of the accused, even one, the prosecutrix would reckon to be a major. It is submitted, therefore, that the provisions of the POCSO Act would not be attracted. Learned counsel submits that in the statement of the prosecutrix recorded before the Magistrate on 15.9.2017, there is a specific allegation of rape committed by the applicant, whereas in the FIR lodged by the prosecutrix's uncle, in the statement of the prosecutrix under Section 161 Cr.P.C. and her statement before the doctor, in confidence during her medico legal examination, the case is one of attempt with rape not even remotely accomplish. It is submitted that the allegation of rape is an improvement made by the prosecution from the FIR to the stage of the prosecutrix's statement under Section 164 Cr.P.C. which makes the prosecution undependable and shaky.
Learned A.G.A. 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 is prima facie a major, the fact that in the FIR, the statement under Section 161 Cr.P.C., the statement made to the doctor in confidence, there is an allegation of attempted rape which has been improved by the prosecutrix in her statement under Section 164 Cr.P.C. to one of rape, about which there is no explanation, 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 Babar involved in Case Crime No. 521 of 2017, under Section 376, 323 I.P.C. and Section 3/4 POCSO Act, Police Station Sahaswan, District Budaun 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 :- 18.12.2018 BKM/-