Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29738 of 2021 Applicant :- Montu @ Gaurav Opposite Party :- State Of U.P And Another Counsel for Applicant :- Sunil Kumar Pathak Counsel for Opposite Party :- G.A.,Mohd. Aslam
Hon'ble Sanjay Kumar Singh,J.
1- Heard learned counsel for the applicant, learned Additional Government Advocate representing the State, learned counsel appearing on behalf of informant and perused the record of the case.
2- The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 197 of 2021, under Sections 363, 366, 376 I.P.C. and 3/4 of Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Police Station-Khatauli, District- Muzaffar Nagar, during the pendency of trial.
3- As per the prosecution case in brief, the complainant, who is father of the victim has lodged F.I.R. on 07.04.2021 regarding an incident of the same date under Sections 363, 366 I.P.C. against the applicant alleging inter alia that his daughter was enticed away by the applicant.
4- It is argued by learned counsel for the applicant that victim in her statements under Sections 161 and 164 Cr.P.C. did not make allegation of committing rape on her against the applicant. It is also submitted that when victim was produced before the doctor, she has disclosed her age about 20 years, but she has refused for her internal examination. It is also pointed out that though as per ossification test report dated 12.04.2021 victim is aged about 16 years, but she in her statement under Section 161 Cr.P.C. has disclosed her age about 19 and half years and as per Aadhaar Card and PAN Card of the victim, her date of birth is 15.06.2001. Copy of the said documents has been brought on record as Annexure No. 5 to the affidavit filed in support of bail application. It is further pointed out that victim in her statements has clearly stated that she has inclination towards the applicant, but her parents wanted to marry her somewhere else, therefore, she herself left her house and had gone to Meerut with the applicant. Thereafter, they went to Dehradun where they took a room in a hotel and lived as husband and wife. In the meantime, she was apprehended. On the strength of aforesaid facts much emphasis has been given that victim was consenting party with the applicant, who has no criminal history to his credit and is languishing in jail since 14.04.2021. If the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
5- Per contra, learned A.G.A. as well as learned counsel appearing on behalf of informant have opposed the prayer for bail of the applicant by contending that as per ossification test report, age of victim is 16 years, therefore, she was minor on the day of incident.
6- After having heard the arguments of learned counsel for the parties and considering the overall facts and circumstances of the case, I find that victim in her statements did not make allegation of rape against the applicant, hence possibility of victim being consenting party with the applicant cannot be ruled out. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
7- Let the applicant Montu @ Gaurav be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall not temper with the evidence during trial.
(ii) The applicant shall not pressurize/intimidate the prosecution witness.
(iii) The applicant shall appear before the trial Court on the date fixed.
(iv) In case of misuse of any condition during trial, the concerned Court below shall be at liberty to cancel the bail.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
8- 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. 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 :- 6.10.2021 Sunil Kr. Gupta Digitally signed by SANJAY KUMAR SINGH Date: 2021.10.06 15:11:39 IST Reason: Document Owner Location: High Court of Judicature at Allahabad