Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19759 of 2018 Applicant :- Mukesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Sanjay Kumar Dubey,Vishal Agarwal Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the orders of the Court dated 06.12.2018, the testimony of the prosecutrix that had yet to be recorded by that date, was directed to be recorded on the next date then fixed that is 13.12.2018 and also concluded, if not possible on the same day, on the following day and so on. In compliance with the aforesaid directions of this Court, the testimony of the prosecutrix has been recorded on 13.12.2018 and also concluded on the same day. A certified copy of the dock evidence of the prosecutrix, who has deposed as PW-2 in S.T. No. 08 of 2018 (State vs. Mukesh) has been filed by the learned counsel for the applicant through a supplementary affidavit dated 19th December, 2018. The said supplementary affidavit is taken on record.
This is an application for bail on behalf of the applicant, Mukesh in connection with Case Crime No. 920 of 2017, under Section 452,376 I.P.C. and Section 4 POCSO Act, Police Station Sasni Kotwali, District Hathras.
Heard Sri Vishal Agarwal, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. appearing for the State.
The submission of the learned counsel for the applicant is that though the prosecutrix had spoken inculpatory during investigation in her various statements to the police and before the Magistrate, in her dock evidence she has taken a categorical stand that she was never ravished by the applicant. She has explained in her examination-in-chief the circumstances that led to a quarrel between her and the applicant. It is said that it was on account of a road side accident when the applicant bumped into her, riding his bicycle, that led her to be soiled by dung that she was carrying. It is stated that some natives of the village, as a result of ensuing altercation between the two, took her to the police station and got the present case registered. It is categorically said that the applicant never came to her house or ravished her there. It is pointed out that she was declared hostile, and, subjected to an intensive cross examination by the prosecution, during which she has stood by her exculpatory stand. She has stated, on being confronted with the first information report, with reference to the relevant allegation put to her, that she does not know how that came to be incorporated there. She has said that the statement to the Magistrate was made under pressure of the police. She has specifically dispelled the allegation in that statement about rape by the applicant, saying that she made that statement under pressure of the police. She has also said that she did not make any statement to the police, or the one that was put to her. In response to a question by the Court she has said that she is deposing today in court of her free will. The submission of the learned counsel for the applicant is that looking to the fact that the prosecutrix has spoken wholesomely exculpatory, there is no good ground to detain the applicant further, pending trial.
Learned A.G.A. has opposed the prayer for bail and submits that during investigation the stand of the prosecutrix has been consistent. He further submits that so far as the dock evidence of the prosecutrix is concerned, it is exculpatory but this Court cannot look into it as that is within the province of the trial court.
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 faice a major, the fact that she has spoken exculpatory in her deposition before the trial court, 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 involved in Case Crime No. 920 of 2017, under Section 452,376 I.P.C. and Section 4 POCSO Act, Police Station Sasni Kotwali, District Hathras 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 :- 21.12.2018 BKM/-