Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47031 of 2018 Applicant :- Farman And Another Opposite Party :- State Of U.P.
Counsel for Applicant :- Sanjay Kumar Yadav,Mohit Kumar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Supplementary affidavit filed today is taken on record.
This is an application for bail on behalf of the applicants, Farman and Irfan @ Baba in connection with Case Crime No. 274 of 2018, under Sections 376-D, 506 I.P.C. and Section 5/6 POCSO Act, Police Station Gangoh, District Saharanpur.
Heard Sri Mohit Kumar, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., along with Sri Raj Kumar Yadav appearing for the State.
The submission of the learned counsel for the applicant is that he has been falsely implicated. He submits that without prejudice to the plea that there is absolutely no involvement of the applicant and there is no truth to the allegations of the prosecutrix, even if the statement of the prosecutrix recorded under Section 164 Cr.P.C. is to be believed, it shows, according to the learned counsel for the applicant, that the prosecutrix was a consenting party. Learned counsel pointed out that in the statement under section 164 Cr.P.C., the prosecutrix has said that the applicant ravished her also, along with the other co- accused. That allegation is there against the applicant in the FIR, as well. The prosecutrix in her statement under Section 161 Cr.P.C. has, however, not at all mentioned the applicant's name or in her statement to the doctor during her medico legal examination, where the allegations are confined to the main accused, Dildar, who is her uncle (Mausa). It is submitted by learned counsel for the applicant, therefore, that the prosecution case is not dependable but one that is wavering, shifting and uncertain. It is also pointed out that so far as the prosecutrix is concerned, she has been medically opined by the Chief Medical Officer, Saharanpur vide his certificate dated 23.5.2018 to be aged about 18 years, on the basis of an ossification test which clearly shows her to be a major. It is further argued that a perusal of the medico legal report does not show the prosecutrix to have telltale injuries, external or internal, compatible with a case of the kind of rape alleged, involving a number of violators.
Learned A.G.A. has 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 name of the applicant along with main accused figures in the FIR and the statement of the prosecutrix under Section 164 Cr.P.C., but does not find mention at all in her statement under Section 161 Cr.P.C., or that made to the Doctor, where allegations are there against main accused-Dildar alone, the fact that the prosecutrix is a major, the fact that the medico- legal report does not show injuries compatible with 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 applicants Farman and Irfan @ Baba involved in Case Crime No. 274 of 2018, under Sections 376-D, 506 I.P.C. and Section 5/6 POCSO Act, Police Station Gangoh, District Saharanpur be released on bail on executing their personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicants shall not tamper with the prosecution evidence.
ii) The applicants shall not threaten or harass the prosecution witnesses.
iii) The applicants shall appear on the date fixed by the trial court.
iv) The applicants shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.
v) The applicants 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 :- 21.12.2018 BKM/-