Court No. - 53
Case :- CRIMINAL APPEAL No. - 1479 of 2018 Appellant :- Durgesh Respondent :- State Of U.P. And Another Counsel for Appellant :- Sunil Kumar Srivastava,Pradyumn Kumar Counsel for Respondent :- G.A.
Hon'ble Jayant Banerji,J.
(Criminal Misc. Bail Application No.IA/1 of 2018) Heard Sri Pradyumn Kumar, learned counsel for the appellant and learned A.G.A. for the State.
As per the office report dated 10.10.2018, the Chief Judicial Magistrate, Mainpuri has informed that Shri Nem Kumar - opposite party No.2 has died.
This criminal appeal has been filed against the order dated 16.01.2018 passed by the Court of the Additional Sessions Judge, Court No.4 (POCSO Act) Mainpuri in Bail Application No.2203 of 2017, arising out of Case Crime No.491 of 2017, under Sections 363, 366, 376, 323, 504, 506 I.P.C., Section 3/4 Protection of Children from Sexual Offences Act and Section 3(2)5 SC/ST Act, P. S. Kotwali, District Mainpuri.
Contention of learned counsel for the appellant is that as per the medical report itself, the age of the alleged victim is 19 years. In her statement made under Section 164 of the Cr.P.C. before the Magistrate concerned, the alleged victim has categorically stated that she had left with the appellant Durgesh on her own free will and accord on 22.01.2017 and had gone to Delhi with whom she got married and they had taken a room on rent. On 19.06.2017, she had married Durgesh (the appellant). It was further stated before the Magistrate that the alleged victim on her own free will and accord had entered into physical relationship with the appellant and is pregnant. Learned counsel has also referred to a certificate of marriage issued by Arya Samaj Vivah Mandir Trust (Regd.) which is annexed as Annexure - 7 to the affidavit as evidence of the marriage of the alleged victim Rakhi with the appellant Durgesh, in which the date of marriage is stated as 22.06.2017.
Learned A.G.A., on the other hand, has opposed the application for bail on the ground that the statement of the first informant under Section 161 Cr.P.C. has demonstrated that the allegation as reflected in the F.I.R. was correct and therefore, no ground is made out for bail.
Perusal of the first information report reveals that it was lodged on 28.04.2017, pursuant to an order passed by the Magistrate concerned under Section 156(3) Cr.P.C. in which the date of commission of the alleged offence is stated to be 22.01.2017. A perusal of the unrebutted supplementary Medico Legal Report that is present on page 56 of the affidavit shows that the Medico Legal Examination was conducted on 29.06.2017 and as per the Radiological Report and the Final Report of the Chief Medical Officer, Mainpuri, the age of Rakhi (the alleged victim) is 19 years. The certified copy of the statement under Section 164 of the Cr.P.C. is enclosed as Annexure - 6 to the affidavit, perusal of which supports the contention advanced by learned counsel for the appellant that the alleged victim Rakhi had voluntarily entered into physical relationship with the accused-appellant and she had married him volurantely. Annexure - 7 to the affidavit is a certificate of marriage issued by the Arya Samaj Vivah Mandir Trust (Regd.) at Ghaziabad in which the date of marriage is shown as 22.06.2017 between the accused appellant and the alleged victim Rakhi. There is also appended a certificate of registration of marriage issued by the Registrar, Hindu Marriages, Ghaziabad evincing that the application was registered on 22.06.2017. There is no specific denial in the counter affidavit filed by the State with regard to the statement made by the alleged victim under Section 164 Cr.P.C., with regard to the certificate issued by the Chief Medical Officer regarding the age of the alleged victim Rakhi and nor is there any denial with regard to the fact that the marriage between the alleged victim and the appellant was solemnized and registered.
In view of the aforesaid, this Court deems it to be a fit case for grant of bail to the appellant. The appellant is, therefore, granted bail.
Let the appellant Durgesh be released on bail in Case Crime No.491 of 2017, under Sections 363, 366, 376, 323, 504, 506 I.P.C., Section 3/4 Protection of Children from Sexual Offences Act and Section 3(2)5 SC/ST Act, P. S. Kotwali, District Mainpuri on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned. In case of breach of any of the conditions mentioned above, an application can be filed before this Court to cancel the bail.
The appeal stands allowed.
Order Date :- 27.2.2019 Atul (Jayant Banerji, J.)