Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2646 of 2019 Applicant :- Dinesh Kumar @ Kallu Patel Opposite Party :- State Of U.P.
Counsel for Applicant :- Mani Shanker Pandey Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Dinesh Kumar @ Kallu Patel, in Case Crime No.378 of 2018 under Sections 363, 376 IPC, and Section 3/4 POCSO Act, Police Station Soraon, District Allahabad.
Heard Sri Mani Shanker Pandey, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, assessed by the Medical Officer, Women Hospital, Allahabad dated 03.07.2018 based on an ossification test, the prosecutrix has been opined to be aged about 19 years. The submission of learned counsel for the applicant is that going by the aforesaid estimation of age, the prosecutrix is clearly a major and the provisions of the POCSO Act would not be attracted. It is further argued that the statement of the prosecutrix recorded under Section 161 Cr.P.C., on 30.05.2018, clearly indicates that the applicant and the prosecutrix were in love, and into a relationship. It also indicates that on 12.05.2018, the prosecutrix was taken by the applicant to Shantipuram to a friend's place and left there for four days. It is said that the applicant arranged for a room to live at Phaphamau, and the two stayed together for ten days. He then took the prosecutrix home and the two stayed there overnight, and the following day. The prosecutrix was then taken to Bodipur to the place of the applicant's maternal uncle, where the stay was for four days, and then he dropped her at the Lohati Chauraha. It is pointed out that the said statement is absolutely exculpatory whereas in the statement under Section 164 Cr.P.C., the prosecutrix under the influence of her parents and family has spoken inculpatory to say, that she was kidnapped by force by the applicant along with another man, who carried her off on a motorcycle taken to Shantipur. It is said that there for four days, the applicant ravished the prosecutrix. At Phaphamau also, it is said that the applicant ravished her. It is pointed out that the statement to the doctor made in confidence accords with the statement of the prosecutrix under Section 164 Cr.P.C., which too has been made under the influence of her family. Learned counsel for the applicant has invited the attention of the Court to the medico legal report, which shows neither any external injury sustained by the prosecutrix or any injury whatsoever upon a local examination of genitals. It is submitted that the aforesaid medico legal report is not at all compatible with a case of rape. The submission of learned counsel for the applicant, in particular, is that the prosecutrix having clearly spoken exculpatory in her earliest account to the police disclosing her relationship with the applicant, the subsequent statements made to the Magistrate and the doctor, post her return back home is under the influence of her family and is, therefore, tainted testimony. It is also submitted that the stand of the prosecutrix being thus, not consistent, the prosecution case is not dependable on the basis of which the applicant may be detained, pending trial.
Learned AGA has opposed the prayer for bail.
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 is prima facie a major, the fact that the stand of the prosecutrix is not consistent, the fact that the medico legal examination report does not prima facie remotely support a case of rape, 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 Dinesh Kumar @ Kallu Patel, in Case Crime No.378 of 2018 under Sections 363, 376 IPC, and Section 3/4 POCSO Act, Police Station Soraon, District Allahabad 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 :- 21.1.2019 NSC