Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49139 of 2018 Applicant :- Guddu Tiwari @ Sanjay Opposite Party :- State Of U.P.
Counsel for Applicant :- S.M.Faraz I. Kazmi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Guddu Tiwari @ Sanjay in connection with Case Crime No. 349 of 2016, under Section 376-D I.P.C. and Section 3/4 POCSO Act, Police Station Karimuddinpur, District Ghazipur.
Heard Sri Faraz Kazmi, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., along with Sri Avaneesh Shukla appearing for the State.
The submission of the learned counsel for the applicant is that the prosecutrix going by the medico legal estimation of her age, based on an ossification test, has been opined to be aged "about below 18 years". It is submitted that going by the aforesaid medico legal report, the prosecutrix, giving the usual allowance of variation of two years would reckon to be a major and, therefore, the provisions of the POCSO Act would not be attracted. The crux of the submission of the learned counsel for the applicant is that in the FIR lodged by the mother of the prosecutrix based on an information received from the prosecutrix, post occurrence, there is a specific allegation of rape against Sannu and Shyam Bihari, and, no other. In the statement to the doctor made in confidence by the prosecutrix during her medico legal examination also, the allegation of rape is confined to Sannu and Shyam Bihari. It is added there, that four boys, who saw the occurrence, beat up Shyam Bihari, whereafter the prosecutrix went back home and shared the mishappening with her mother, who reported the matter to the police. Thus, the allegation here is also confined to Sannu and Shyam Bihari, and, in a sudden turn to the prosecution stance in the statement under Section 164 Cr.P.C., after the initial narration relating to the offence committed by Sannu and Shyam Bihari, it is added towards the tail end that five other nominated accused, which includes the applicant, besides co- accused, Awadhesh, Hirde, Upendra, Govinda and Rahul, also came along, and ravished the prosecutrix. It is submitted that the aforesaid changed stance in the statement under Section 164 Cr.P.C. is an improvement made to the prosecution which is based on afterthought and premeditation. It finds no mention in the earliest account of the occurrence, and appears to be motivated, on which no reliance can be placed by the prosecution. It is submitted that so far as the applicant is concerned, the evidence appearing against him is unreliable, shaky and infirm, on the basis of which he cannot be detained pending trial.
Learned A.G.A. 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 applicant is not nominated in a well informed FIR lodged by the prosecutrix's mother, in the statement made by the prosecutrix to the doctor in confidence but his name has been introduced in a most casual fashion through 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 Guddu Tiwari @ Sanjay involved in Case Crime No. 349 of 2016, under Section 376-D I.P.C. and Section 3/4 POCSO Act, Police Station Karimuddinpur, 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 :- 20.12.2018 BKM/-