Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41189 of 2018 Applicant :- Mahtab Opposite Party :- State Of U.P.
Counsel for Applicant :- A.C.Srivastava,Samir Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Mahtab in connection with Case Crime No.87 of 2018, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, P.S. Sarsava, District Saharanpur.
Heard Sri Avinash Chandra Srivastava, learned counsel for the applicant and Sri Indrajeet Yadav, learned AGA along with Sri Mayank Awasthi, learned counsel on behalf of the State.
The submission of learned counsel for the applicant is that the prosecutrix is a major as will appear from a perusal of her medico legal estimation of age carried in the report dated 17.03.2018, where on the basis of an Ossification Test she has been opined to be about 17 years. It is submitted that giving usual allowance of two years, to the benefit of the accused, the prosecutrix would reckon to be a major. Learned counsel has invited the attention of the Court to the statement of the prosecutrix recorded under Section 164 Cr.P.C., where she has said that she has left her home on her own in order to marry Mahtab; she said that she stayed with him and also by her consent established physical relations. It is also said in the statement that she is still desirous of marrying the applicant even though no marriage has yet solemnized. It is submitted that on the basis of the statement of the prosecutrix recorded under Section 164 Cr.P.C. no charge under Section 376 I.P.C. or under the POCSO Act going by the age of the prosecutrix can be said to be made out.
Learned AGA has opposed the prayer for bail but does not dispute the fact that the prosecutrix is a major according to the medico legal estimation of her age, and, that the statement of the prosecutrix recorded under Section 164 Cr.P.C., is exculpatory.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosexutrix is a major and that her statement recorded under Section 164 Cr.P.C., is exculpatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Mahtab in connection with Case Crime No.87 of 2018, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, P.S. Sarsava, District Saharanpur be released on bail on executing a 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 R./