Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2976 of 2019 Applicant :- Nadeem Opposite Party :- State Of U.P.
Counsel for Applicant :- Ashutosh Upadhyay Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Nadeem in connection with Case Crime No. 446 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, P.S. Sambhal, District Sambhal.
Heard Sri Ashutosh Upadhyay, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. along with Sri Ashutosh Srivastava, learned counsel 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, made by the Chief Medical Officer, Sambhal, vide his report dated 27.09.2018, the prosecutrix has been opined to be 18 years. The said opinion is based on an ossification test. It is submitted by learned counsel for the applicant that going by the aforesaid medically estimated age of the prosecutrix the provision of the POCSO Act would not apply. It is submitted that so far as the FIR is concerned, the allegation, therefore, is one of enticing away the prosecutrix referable to Section 363, 366 I.P.C. that may not be at all be attracted looking to her age. The prosecutrix in her statement under Section 161 Cr.P.C., as recorded on 20.09.2018, has spoken exculpatory and has said that on 20.09.2014 when she was reading in class XI at about 8.00 O'clock after the school attendance was over, she was taken ill. She went to a friend of hers, who lives in village Timanpur. She returned from Timanpur and found her father there, standing with the police who brought her to the station. Nobody else recovered her or brought her. In the statement under Section 164 Cr.P.C. recorded on 12.10.2018, after 22 days of her statement under Section 161 Cr.P.C., the prosecutrix has spoken inculpatory, saying that she was on her way to college on 20.9.2019 at 8.00 in the morning. She was standing under a Pipal tree where the applicant arrived riding his motorcycle. He asked her to ride pillion and on her refusal threatened her. He carried her off towards village Timanpur Chauraha, and to a nearby sugarcane field. He left his brother to guard the motorcycle. He took the prosecutrix into the field and ravished her there. Learned counsel for the applicant submits that the aforesaid contradictory statements under Section 164 Cr.P.C. completely incompatible with the stand taken in the statement under Section 161 Cr.P.C. by the prosecutrix, is the result of coercion from her family. It is in addition submitted, that a perusal of the medico legal report shows that the prosecutrix has not sustained any external injury to her body, or injury to her private parts, which is completely incompatible with a case of violent rape in a sugarcane field, as alleged by the prosecution. The submission is that the entire prosecution is undependable, on the basis of which the applicant cannot be detained pending trial.
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 faice a major, the fact that there is gross variation in the stand of the prosecutrix under Section 161 Cr.P.C. that is exculpatory and the statement under Section 164 Cr.P.C. recorded 22 days later that is inculpatory, the fact that there is no injury prima facie compatible with a case of rape in the medico legal report, 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 Nadeem involved in Case Crime No. 446 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO Act, P.S. Sambhal, District Sambhal 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 laid unaffected by anything said in this order.
Order Date :- 22.1.2019 BKM/-