Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46849 of 2018 Applicant :- Jitendra Yadav Opposite Party :- State Of U.P.
Counsel for Applicant :- Sachida Nand Tripathi Counsel for Opposite Party :- G.A.,I.P. Singh
Hon'ble Harsh Kumar,J.
Sri S.K. Mishra, Advocate filed power on behalf of applicant, which is taken on record.
Heard S.K. Mishra and Sri S.N. Triapathi, learned counsel for applicant, Sri I.P. Singh, learned counsel for victim, learned AGA for the State and perused the record.
This is second bail application, after rejection of first bail application on merits vide order dated 19.12.2017, copy filed at Annexure No.3 to the affidavit.
Learned counsel for applicant contended that after rejection of first bail application, the trial has not concluded as yet; that now prosecutrix/victim has been married to one Sadanand Yadav and has given affidavit to this effect, so the applicant, who is languishing in jail since last two years from 20.3.2017, may be enlarged on bail; that applicant has no criminal history; that applicant undertakes that he will not misuse the liberty of bail.
Learned counsel for first informant, who has filed affidavit of prosecutrix/victim mentioning her age to be 21 years has not opposed the second bail application However, learned AGA vehemently opposed the prayer of bail and contended that the radiological age of prosecutrix was determined at 16 years in the year 2017, while as per academic certificate, her date of birth is 10.8.2003 and she was aged about 13 ½ years at the time of incident; that during the period of last two years, a 13 years old girl may not grow so rapidly to become a girl of 21 years as mentioned in affidavit filed on her behalf in this bail; that the statement of prosecutrix, who is alleged to have turned hostile was recorded before Trial Court on 26.9.2017, wherein her age was mentioned to be 22 years, while she was around 14 years at the time of recording of her statement according to her date of birth and may not be above 16 ½ years of age as per her radiological age assessed in this case; that it is unimaginable that a girl of 13 years or even of 16 years in February, 2017, will grow upto 22 years in September, 2017 at the time recording of her statement before Trial Court or will get reduced to 21 years after lapse of 1½ years in February, 2019; that such affidavit indicates that the same has been obtained by impersonating some other girl or under undue influence on behalf of applicant-accused; that on basis of such affidavit, there is no reason to presume consent of minor child of 13 ½ years for sexual relations by accused-applicant, who was incapable of giving consent, while applicant is a married person, having his own children; that in this case of rape applicant who is unscrupulous type of person is tampering with prosecution evidence through his men, in case of his release on bail, he will misuse liberty of bail and delay and defraud the trial.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I do not find it a fit case for bail. The 2nd bail application of applicant Jitendra Yadav in case crime no.94 of 2017, under sections 363, 366, 376 IPC and 3/4 POCSO Act, P.S. Barhalganj, District Gorakhpur, is rejected accordingly.
Order Date :- 26.7.2019 Tamang