Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1711 of 2019 Applicant :- Mohit Opposite Party :- State Of U.P.
Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Mohit, in Case Crime No.235 of 2018, under Sections 376 IPC, and Section 3/4 POCSO Act, Police Station Mandawar, District Bijnor.
Heard Sri Gaurav Kakkar, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the best evidence of the prosecutrix's age, now available, as she is no more, is her Aadhar Card and PAN Card, annexed at pages Nos. 56 and 57 of the paper book, respectively. According to both the documents, her date of birth is 10.05.1999. According to her date of birth, she was clearly a major on the date of occurrence, that is to say, 29.06.2018. Learned counsel for the applicant submits that the deceased was a major and, therefore, the provisions of the POCSO Act would not apply. It is submitted that the deceased and the applicant were into a relationship, and had married on 28.3.2018. They cohabited together as man and wife, and in due course of nature, the deceased conceived. However, during delivery, there was some complication that went beyond management, on account of which she died of anaemic shock as, evident from a perusal of her postmortem report dated 20.06.2018, annexed as Annexure- SA-1 to the supplementary affidavit. Likewise, a perusal of the postmortem report of the child also annexed as part of Annexure-SA-1, shows that he died on account of uterine asphyxial death due to maternal shock and hemorrhage. It is thus evident that the child died because of the mothers preceding death. It is, in particular, pointed out by learned counsel for the applicant that her family had never reported any case of rape against the applicant, so long as the two were living together. However, after the applicant's wife died, they lodged a First Information Report against the applicant, charging him with the offence of murder, besides rape, that came to be registered under Section 363, 366, 376, 302 IPC and Section 3/4 POCSO Act. Learned counsel for the applicant has, in particular, drawn the attention of the Court to the statement of the doctor, who conducted the autopsy of the deceased and her still born child. A perusal of the statement shows that the doctor has categorically said that the deceased and her child died on account of excessive bleeding during delivery. It is further submitted that after investigation into the cause of the prosecutrix's death, that was not an unnatural death, but on account of complications during delivery, the police dropped offences under Section 363, 366 and 302 IPC. The dropping of Sections 363 and 366 IPC, in the submission of learned counsel for the applicant, shows that the police also collected evidence that the applicant and the deceased were living together as man and wife. It is in view of the aforesaid evidence also, that the police dropped the charge of murder. So far as the charge under Section 376 IPC and Section 3/4 POCSO Act, is concerned, it is submitted by learned counsel for the applicant that the same is completely out of place and context in the scenario. The applicant and his deceased wife lived together as man and wife, where they were about to have a child, but during delivery, there was some complication, claiming the life of the mother and the child, both.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the evidence appearing in the case prima facie does not show that the deceased was a minor, the fact that the applicant and the deceased were living together as man and wife, the fact that no FIR was lodged regarding this allegation of rape, while the deceased was alive but only after her death which has not been found to be unnatural, but the result of one of the oldest perils to the life of a woman, 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 Mohit, in Case Crime No.235 of 2018, under Sections 376 IPC, and Section 3/4 POCSO Act, Police Station Mandawar, District Bijnor 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 :- 22.1.2019 NSC