Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45591 of 2018 Applicant :- Kishan Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Amrendra Pratap Singh,Sunil Kumar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Kishan Kumar in connection with Case Crime No. 343 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, P.S. Mohammadabad, District Farrukhabad.
Heard Sri Sunil Kumar, learned counsel for the applicant and Sri D.P.S. Chauhan, learned AGA alongwith Sri Abhinav Tripathi appearing for the State.
The submission of the learned counsel for the applicant is that though the prosecution have alleged that the prosecutrix is aged 14 years, on the basis of a nondescript certificate issued by the Principal of the Kanya Uchcha Prathmik Vidyalay Madanpur, Vikas Khand Mohammadabad, Farrukhabad dated 19.5.2018, scribed on a plain paper, the age of the prosecutrix according to the medico legal estimation, certified by the Chief Medical Officer, Farrukhabad vide his certificate dated 14.8.2018, based on an ossification test, is about 17 years. It is submitted that giving the usual allowance of variation in age, according to the medically estimated age, by two years or even one, the prosecutrix would reckon to be a major. It is submitted that the provisions of the POCSO Act would not be attracted. Learned counsel has invited the attention of the Court to the statement of the prosecutrix under Section 164 Cr.P.C., a copy of which is not available on the paper book but the same has been produced in court by the learned A.G.A. where it is recorded in the case diary. A perusal of the statement of the prosecutrix under Section 164 Cr.P.C. shows that the prosecutrix went alongwith the applicant with whom she spent time in a hotel in Madanpur and then to Faridabad. The two rented a room in Faridabad and stayed together, what the prosecutrix calls " like husband and wife". In the said statement, the prosecutrix has stated that no sexual relations were established between the two. In the statement to the doctor in confidence, the prosecutrix has said that she proceeded Faridabad at the bidding of the applicant. The two entered into a court marriage at Allahabad. Now, she wants to stay with her parents, and, that the parties had physical relations a number of times.
The submission of the learned counsel for the applicant is that the prosecutrix is a major, who has gone alongwith the applicant of her free will and married and,therefore, no offence of any kind has been committed.
Learned A.G.A. has 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 prosecutrix going by the medico legal estimation of her age is prima facie a major and her statement under Section 164 Cr.P.C. as well as that made to the doctor are exculpatory, 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 Kishan Kumar involved in Case Crime No. 343 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, P.S. Mohammadabad, District Farrukhabad 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 :- 29.11.2018 BKM/-