Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49126 of 2018 Applicant :- Mukesh Sahani Opposite Party :- State Of U.P.
Counsel for Applicant :- Jitendra Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Mukesh Sahani in connection with Case Crime No. 99 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, P.S. Sukhpura, District Ballia.
Heard Sri Jitendra Kumar Singh, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., along with Sri Abhinav Tripathi appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age carried in the certificate of the Medical Officer dated 15.09.2018, the prosecutrix, on the basis of an ossification test, has been opined to be aged 18 years. It is submitted that the prosecutrix is clearly a major, and, the provisions of the POCSO Act would, therefore, not be attracted. It is submitted that the prosecutrix, in fact, eloped with the applicant of her free will. It is evident from a perusal of the statement of the prosecutrix under Section 161 Cr.P.C., where she has said that she was on way from her home to school in Ballia, when she was called over by Mukesh, who asked her to accompany him to Ahmadabad. The two proceeded to Ahmadabad and married there in a temple. Thereafter, they rented a room at Ahmadabad and lived like man and wife. It is said that some natives of their village informed that a case has been registered against the applicant, whereupon the two proceeded to Ballia by train and themselves went over to P.S. Sukhpura. It is pointed out that the police, in their case diary dated 05.09.2018, have recorded the fact that the prosecutrix and the applicant came here together before them, where both of them said, that both had left home without informing their family, which corroborates the prosecutrix's exculpatory stand in the statement under Section 161 Cr.P.C. Learned counsel also invited the attention of the Court to the statement of the prosecutrix made to the doctor in confidence, where too, she has said that she had gone along with Mukesh, and married him, followed by sexual relations between the two, which is a signed statement of the prosecutrix. It is submitted that in the statement under Section 164 Cr.P.C., the prosecutrix has testified inculpatory, saying that the applicant took her away by blandishment and made her smell something deleterious, carrying her away in an unconscious state, where he forcibly married her at Ahmadabad. It is submitted that the said statement is absolutely at variance to the statement under Section 161 Cr.P.C. and the statement made in confidence before the doctor. It is submitted that the said statement is made under pressure of her family. It is also submitted that the medico legal report does not support a case of rape, as there are no external or internal injuries, sustained by the prosecutrix.
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 is prima facie a major, and, the fact that by her statement under Section 161 Cr.P.C., and that made to the doctor she has said that she went along with the applicant, married him and stayed with him, and, the two came back on their own learning about the registration of the present case, 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 Mukesh Sahani involved in Case Crime No. 99 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, P.S. Sukhpura, District Ballia 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 :- 20.12.2018 BKM/-