Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41703 of 2018 Applicant :- Babloo Opposite Party :- State Of U.P.
Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Babloo in connection with Case Crime No. 710 of 2017 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Jaitipur, District Shahjahanpur.
Heard Sri Radhey Shyam Shukla, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Awaneesh Shukla,learned counsel appearing on behalf of the State.
Counter affidavit filed on behalf of the State is taken on record.
The submission of learned counsel for the applicant is that going by the medico legal report dated 13.06.2018 issued by the Medical Officer, District Woman Hospital, Shahjahanpur, the age of the prosecutrix on the basis of ossification test is opined to be 19 years. He, therefore, submits that going by the aforesaid age, the provisions of POCSO Act would not be attracted. It is argued that though in the statement under Section 164 Cr.P.C. recorded nine days after recovery, the prosecutrix has spoken inculpatory, and, alleged ravishment amongst others by the applicant but in her statement under Section 161 Cr.P.C. recorded on 09.06.2018 that is part of the case diary in Parcha CD No. 21, soon after recovery, in fact, immediately following the recovery memo, it is said by the prosecutrix that she and the applicant were in contact over mobile phone. The applicant called her over mobile to Faridpur from Bareilly, and in response to that call she travelled of her own to Faridpur, where she was received at the Railway station by the applicant. It is then said that by blandishment, the applicant took away the prosecutrix to his home and married her. She was staying with the applicant for the past eight months at his home at Faridpur. She also says that she is in the family way into the 8th month, a fact that has been corroborated by medico legal examination. Learned counsel for the applicant submits that the aforesaid stand of the prosecutrix and the statement under Section 161 Cr.P.C. show the prosecutrix who is otherwise a major went over to the applicant of her free will and married him. She lived with him for eight months and begot a child that was in her womb at the time she was apprehended. It is submitted that allegation of rape is entirely misplaced but it is a case where parties have not only had relations but consensually entered into a wedlock.
Learned AGA has opposed the prayer for bail and harped much on the statement under Section 164 Cr.P.C..
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecutrix prima facie is a major by the medico legal estimation of her age, and, the fact that in the statement under Section 161 Cr.P.C. where she has clearly stated that she travelled to Faridpur of her own and thereafter stayed with the applicant post marriage for eight months where she conceived and carrying a pregnancy of eight months, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Babloo involved in Case Crime No. 710 of 2017 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Jaitipur, District Shahjahanpur 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 :- 30.11.2018 Deepak