Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32013 of 2021 Applicant :- Keshav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vindhyachal Singh,Raj Mangal Tiwari Counsel for Opposite Party :- G.A.,Rajeev Kumar
Hon'ble Om Prakash-VII,J.
Short counter affidavit filed today by the learned A.G.A. is taken on record.
Heard Sri Vindhyachal Singh, learned counsel for the applicant, Sri Rajeev Kumar, learned counsel appearing for the informant and learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. It is further argued that no prima facie case is made out against the applicant. Referring to the contents of the FIR, statement of the victim recorded under Section 161 and 164 Cr.P.C. it was further argued that girl was not enticed away by the applicant. She herself had called the applicant and went along with him at her own freewill. Referring to the short counter affidavit it has further been argued that victim was found 17 to 18 years of age. Progress report annexed with the short counter affidavit is not a reliable document. It is not issued in proper way and is not related with the victim. It is also argued that nothing was stated by the victim in the statement under Section 161 and 164 Cr.P.C. to attract the offence under Section 376 IPC. Victim herself has stated that she married with the applicant. Thereafter sexual relation was established. Referring to the entire documents annexed with the application and short counter affidavit it was further argued that the applicant is in jail since 01.04.2021 having no criminal history.
Learned A.G.A. as well as learned counsel for the informant argued that victim was minor at the time of incident. She was enticed away by the applicant and offence of rape was committed upon her as is clear from the statement of the victim herself. Consent of the victim cannot be construed as a free consent. Thus, referring to the entire documents it is further argued that a prima facie case is made out.
Considering the facts and circumstances of the case, the submissions made by the learned counsel for the parties and keeping in view the nature of the offence, complicity of the accused, scrutinizing the facts mentioned in the FIR, statement of witnesses recorded under Section 164 Cr.P.C., medical evidence and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Keshav involved in Case Crime No. 64 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/ 4 POCSO Act, P.S. Mirhachi, District Etah be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions :
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 20.12.2021 Sachdeva