Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2815 of 2019 Applicant :- Govind Opposite Party :- State Of U.P.
Counsel for Applicant :- Nagendra Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Govind, in Case Crime No.530 of 2018 under Section 376, IPC, and Section 3/4 POCSO Act, Police Station Bilsi, District Budaun.
Heard Sri Nagendra Kumar Singh, 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, determined by the Chief Medical Officer, Budaun, vide his certificate dated 6.09.2018, she has been opined to be about 17 years old. The aforesaid estimation of age is based on an ossification test, dental status and certain other parameters. The submission of learned counsel for the applicant is that making allowance for the usual variation of two years in the medically estimated age, or even one, the prosecutrix would reckon to be a major. As such, in the submission of the learned counsel for the applicant, the provisions of the POCSO Act, would not be attracted. Learned counsel for the applicant has emphatically pointed out that in the FIR, giving rise to the present crime, lodged by the brother of the prosecutrix, which carries a comprehensive account of the occurrence to which, the applicant's brother, the first informant is a witness, the allegation against the applicant is one of molestation and not rape. In the statement of the prosecutrix under Section 161 Cr.P.C., recorded by the police also the allegation is again of molestation, but not rape. However, in the statement under Section 164 Cr.P.C., and that made to the doctor, an allegation of rape has been categorically made striking a material departure from the case in the FIR. It is submitted that the case has not only been improved on the basis of an afterthought but has been generically altered from a case of molestation to one of rape. It is urged that on the basis of such an uncertain and undependable prosecution, there is no justification to detain the applicant, 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 prima facie the prosecutrix is a major, the fact that in the FIR lodged by the brother, the informant, who is a witness to the occurrence, there is no allegation of rape, but molestation alone, the fact that the case of rape has been introduced for the first time in the statement under Section 164 Cr.P.C., 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 Govind, in Case Crime No.530 of 2018 under Section 376, IPC, and Section 3/4 POCSO Act, Police Station Bilsi, District Budaun 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