Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38037 of 2018 Applicant :- Ishtiyak Ahmad Opposite Party :- State Of U.P.
Counsel for Applicant :- Mohd. Shabbir,Mohd Shamim Khan Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of Ishtiyak Ahmad, in Case Crime No.499 of 2018, under Sections 363, 366, 376, 506, IPC, and Section 4 of POCSO Act, Police Station Bahedi, District Bareilly.
Heard Sri Mohd. Shabbir, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Mayank Awasthi appearing on behalf of the State.
On 4.10.2018, this Court had noticed that the prosecutrix in her statement under Section 164 Cr.P.C., had accused the applicant of ravishing her whereas in the statement before a Child Welfare Committee recorded on 2.8.2018, the prosecutrix had blamed her parents with a design to do an honour killing or else sell her off. She has submitted that the statement earlier made was under pressure from the parents. This Court directed, therefore, that it may verify afresh from the prosecutrix as to whether she stands by her statement under Section 164 Cr.P.C., or the statement before the Child Welfare Committee depending upon the stage of investigation.
Learned AGA has filed a short counter affidavit and brought on record a fresh statement recorded by the Child Welfare Committee on 8.10.2018, wherein the prosecutrix has reaffirmed her statement under Section 164 Cr.P.C., and says that her statement before the Child Welfare Committee on 2.8.2018 had been given under some misconception on account of some misguidance. She has said that she has no complaint so far as her parents are concerned.
Learned counsel for the applicant has argued that it is a case where the applicant and the prosecutrix have married according to Muslim rites on 12.6.2018, but on account of castes difference, the family are averse to the marriage that has led to the present FIR and the prosecution. It is also pointed out that in the FIR certain other persons appear to have been named, which shows the hollow nature of the prosecution and the consistent attempt to suppress the true state of facts that the applicant and the prosecutrix are into a relationship and have now married. It is further argued that according to the medical estimation of age of the prosecutrix, she has been found to be aged about 16 years, which giving the usual allowance of two years, would reckon the prosecutrix to be a major. It is also submitted that though the present statement of the prosecutrix reaffirms the prosecution, which shows a consistent stand of the prosecutrix, where she has supported the prosecution in her statement under Section 164 Cr.P.C., refuted altogether in her statement before the Child Welfare Committee on 2.8.2018, and, now again, reverted to her statement in her present statement recorded on 8.10.2018 to the one under Section 164 Cr.P.C., it is submitted that on the basis of such a shifting stand, the prosecution case is under a heavy cloud of doubt.
Learned AGA has submitted that the prosecutrix has reaffirmed her statement under Section 164 Cr.P.C., through her present statement recorded on 8.10.2018 before the Child Welfare Committee.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegation, the severity of punishment, in particular, the consistently shifting stand of the prosecutrix under Section 164 Cr.P.C., and before the Child Welfare Committee that has been twice recorded, 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 Ishtiyak Ahmad, in Case Crime No.499 of 2018, under Sections 363, 366, 376, 506, IPC, and Section 4 of POCSO Act, Police Station Bahedi, District Bareilly 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 :- 29.10.2018/NSC