By means of this application, the applicant, who is involved in Case Crime No. 392 of 2018, under sections 363/366/376D/506 of the Indian Penal Code, readwith Section 5G/6 of POCSO Act,Police Station-Gola, District- Lakhimpur Kheri is seeking enlargement on bail during the trial.
As per the office report dated 09-10-2020, notice issued to respondent no. 2 by this court vide its order dated 24-08-2020, has been served personally, but, neither anyone has put in appearance nor filed any Counter Affidavit on behalf of respondent no.2.
According to the version in the F.I.R. dated 03-08-2018 is that on 30-07-2018 at about 06.00 A.M., the daughter of the informant had gone out to ease herself, from where Kallu and his relative, Bhargava, had forcibly taken her on motorcycle. Since then, she is not traceable.
Learned counsel for the applicant has submitted that there is contradiction in the statement given by the prosecutrix under section 161 Cr.P.C., wherein there is no allegation of outraging the modesty of the prosecutrix by the applicant, but, in the statement recorded under section 164 Cr.P.C., for the first time, allegation of outraging the modesty of the prosecutrix has been levelled against the applicant as well as the co-accused person.
It is further submitted that the opinion given in the medical examination report is that there is no use of force. Sexual violation, cannot be ruled out, the final opinion is pending after the F.S.L. Report.
It is further submitted that the F.S.L. Report has been enclosed as C.A.-9 to the Counter Affidavit filed on behalf of the State, wherein a report has come that no definite opinion is possible after the "milan".
It is further submitted that as per the medical report and the F.S.L. Report, no offence is made out against the applicant as alleged by the prosecutrix in her statement recorded under section 164 Cr.P.C.
It is further submitted that the trial which is required to be concluded within one year from the date of taking cognizance of the offence as per section 35 of the POSCO Act, 2012, is still pending, the said fact has not been disputed by the learned A.G.A.
It is further submitted that the applicant has no criminal history and he has falsely been implicated in the present case. The applicant is languishing in jail since 02-09-2018.
On contra, learned A.G.A. opposed the prayer for grant of bail but unable to dispute the submissions raised by learned counsel for the applicant, particularly the submissions regarding the medical evidence does not corroborate with the ocular witnesses and the contractions in the statements of the prosecutrix.
After hearing the submissions made by the learned counsel for the parties and examining the material available on record, keeping in view the nature of offence and totality of facts and circumstances of the case and without entering into the merits of the case, I am of the view that the applicant has made out a fit case for grant of bail. Hence, the bail application is hereby allowed.
Let the applicant,Kallu @ Ramendra, involved in Case Crime No. 392 of 2018, under sections 363/366/376D/506 of the Indian Penal Code, readwith Section 5G/6 of POCSO Act,Police Station-Gola, District- Lakhimpur Kheri be released on bail on furnishing personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
(i) The applicant shall, however, co-operate and attend the proceedings at every stage without seeking unnecessary adjournments just to prolong the proceedings.
(ii)The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(iii) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(iv) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 17.8.2021 AKS