Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1721 of 2019 Applicant :- Gautam Opposite Party :- State Of U.P.
Counsel for Applicant :- Akhilesh Kumar,Tej Bhanu Pandey Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Gautam, in Case Crime No.106 of 2018, under Sections 363, 366, 376, 506 IPC, and Section 3/4 POCSO Act, Police Station Khanpur, District Ghazipur.
Heard Sri Akhilesh Kumar, learned counsel for the applicant and Sri Sudheer Kumar Pathak, 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 according to the medico legal estimation of the prosecutrix's age certified by the Medical Officer, District Women Hospital, Ghazipur vide her certificate dated 16.10.2018, the prosecutrix is aged above 18 years. The aforesaid opinion is based on an ossification test dated 10.10.2018. The submission of learned counsel for the applicant is that going by the aforesaid estimation of the prosecutrix's age, it is evident that she is a major and, therefore, the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant has submitted that in the statement under Section 161 Cr.P.C., the prosecutrix has categorically accepted that she was in love with the applicant; that she would talk to him; that on 24.09.2018, he asked her to elope and she left home for Audihar on 04.09.2018 meeting the applicant there. The applicant took her to Himachal Pradesh, where the two stayed together and had carnal relations, living together as man and wife. It is said that he proposed marriage, left her at Sighauna and that time, she wanted to go back to her mother. In the statement under Section 164 Cr.P.C., the same statement about the applicant calling the prosecutrix to Audihar is there with a communication over telephone. It is said that she answered in the affirmative but has added that she did so because the applicant threatened that he would do the prosecutrix's brother to death. She said that she went along with him because of the threat extending to her brother's life. Here also it is said that she went along with the applicant from Audihar by bus to Banaras and from there to Himachal Pradesh by train and stayed there with him in a room for about a week. It is also said that the applicant asked her to marry and had carnal relations with her against her wish. Lateron, after a week, he brought her to her sister-in-law's (Bhabhi) home at Banaras, where she stayed for two days. Thus, the applicant took the prosecutrix, according to her statement under reference to Khanpur and there to the village Pradhan. It is said that his family said that she should speak exculpatory. The submission of learned counsel for the applicant is that the statement under Section 164 Cr.P.C., is also substantially the same but has been given the colour of an element of coercion at the instance of her family. It is submitted that it is a case of relationship where the parties, who are adults, wanted to marry and eloped together. Same is said of the statement before the Doctor. Learned counsel for the applicant has also invited the attention of the Court to the medico legal report, which shows no injury upon an external examination. Learned counsel for the applicant submits further that so far as the internal examination is concerned, the mother of the prosecutrix declined the same, regarding which he submits is on account of the fact that she knew that it was a consensual relationship. He further submits that refusal to submit to an internal examination, leads to an adverse inference been drawn against the applicant.
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 she has acknowledged in her statement under Section 161 Cr.P.C., that she eloped with the applicant of her free will, the fact that in the statement under Section 164 Cr.P.C., and that made to the doctor, though with a allegation of coercion, the fact of eloping and going to different public places and staying with the applicant is there, 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 Gautam, in Case Crime No.106 of 2018, under Sections 363, 366, 376, 506 IPC, and Section 3/4 POCSO Act, Police Station Khanpur, District Ghazipur 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 :- 22.1.2019 NSC