Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1014 of 2019 Applicant :- Monu Opposite Party :- State Of U.P.
Counsel for Applicant :- Shyam Babu Vaish Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Monu, in Case Crime no.879 of 2018, under Sections 363, 376 IPC and Section 4 of the POCSO Act, Police Station Khurja Nagar, District Bulandshahr.
Heard Sri Shyam Babu Vaish, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico-legal estimation of the prosecutrix's age as certified by the Chief Medical Officer, Bulandshahr vide a certificate dated 03.11.2018, she has been opined to be about 16 - 17 years. The aforesaid assessment has been made on the basis of an ossification test, and also on the evaluation of the dental status. Learned counsel for the applicant submits that making allowance for the usual variation in the medically estimated age by two years, or even one, the prosecutrix would reckon to be a major. He further submits that the provisions of the POCSO Act would, therefore, not be attracted. The submission of the learned counsel for the applicant is that going by the statement of the prosecutrix recorded under Section 164 Cr.P.C., it is evident that though the prosecutrix has spoken ostensibly in inculpatory words, but in the content of the statement statement it is apparent that it is a case of consent. In order to further his submission, he has invited the attention of the Court to the said statement u/s 164 Cr.P.C. where it is said that the prosecutrix had gone to the village temple on 16.07.2018 at 9.00 a.m. in the morning when the applicant, who is a native of the same village, asked her to come along with him, else he would do something to dishonour her. It is then said that he took her forcibly to Haridwar. It is said that he housed her there in a room. It is further said that he had relations with her, like man and wife. He had taken her along to see the place when she gave him the slip, and made her way back home. It is pointed out that the prosecutrix has said towards the closing part of the statement that the applicant had put Sindur to the parting of her hair, and further that on his bidding, she had taken along Rs.20,000/- from home explaining it that he had threatened her.
The submission of the learned counsel for the applicant is that the statement does not show as to what was the threat that caused the prosecutrix to go along from a public place, like a temple along with the applicant. She is not shown to have called rescue though she passed through busy public places from her village to Haridwar. It is further submitted that the fact that she carried cash from home is also indicative of consent on her part. In her statement before the Doctor also, she has more or less said likewise making a precis of it all. Learned counsel has, however, emphasized the fact that the prosecutrix declined to undergo, both external and internal examination, which he submits would lead to an adverse inference being drawn against her. He has also pointed out that in the FIR lodged by the prosecutrix's mother, it is mentioned that the applicant has taken away her daughter by blandishment, and while leaving home, she had taken along Rs.20,000/- in cash, along with two gold rings, which further indicates consent on her part.
Learned A.G.A. 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 prosecutrix is prima facie a major, the facts as to the manner in which she has accompanied the applicant away from a busy public place without resistance or calling rescue prima facie manifests consent, the fact that she went through busy public places without raising alarm, the further fact that while leaving for Haridwar along with the applicant, she took along cash and two gold rings from home also indicate consent on her part, 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, Monu, in Case Crime no.879 of 2018, under Sections 363, 376 IPC and Section 4 of the POCSO Act, Police Station Khurja Nagar, District Bulandshahr, 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.
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. It is further clarified that 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 :- 22.1.2019 Anoop