Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41698 of 2018 Applicant :- Neelu Opposite Party :- State Of U.P.
Counsel for Applicant :- Dharmendra Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Neelu in connection with Case Crime No.262 of 2017, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, P.S. Gazipur, District Fatehpur.
Heard Sri Dharmendra Pratap Singh, learned counsel for the applicant and Sri M.P.Singh Gaur, learned AGA along with Sri Mayank Awasthi, learned counsel on behalf of the State.
The submission of learned counsel for the applicant is that he has been falsely implicated. Rather, he himself is a victim of circumstances where the prosecutrix feeling herself threatened at the hands of her own parents, who were about to sell her off escaped home and came over to her Aunt and Uncle (Mausi and Mausa). The kind hearted Aunt and Uncle in due course arranged a match for her and settled the marriage. The applicant happens to be the groom. In course of time, the prosecutrix was living happily with her husband, but her parents lodged a first information report against her husband accusing him of rape, and, that is how he landed in jail. To support all these contentions, learned counsel for the applicant relies on the statement of the prosecutrix recorded under Section 164 Cr.P.C., through which learned counsel has taken the Court in detail. Learned counsel points out that the age of the prosecutrix in her medico legal examination has been opined by the doctor to be 15 years,vide a medical certificate to that effect, being one dated 08.09.2017 issued by the Chief Medical Officer, Fatehpur. Learned counsel for the applicant submits that giving the usual allowance of two years, the prosecutrix would reckon to be 17 years. He has invited the attention of the Court to Exception-II appended to Section 375 Cr.P.C. which says that sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape. He further submits that the prosecutrix in this case being by medico legal estimation reckoned to be 17 years, sexual relations established by the applicant with her during wedlock, would not amount to statutory rape.
Learned AGA has opposed the prayer for bail but does not dispute the fact that the statement of the prosecutrix recorded under Section 164 Cr.P.C., is exculpatory and prima facie it is also not a case of statutory rape.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of punishment, the evidence appearing in the case, in particular, looking to the statement of the prosecutrix recorded under Section 164 Cr.P.C. and Exception-II Appended to Section 375 Cr.P.C., but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Neelu in connection with Case Crime No.262 of 2017, under Sections 363, 366, 376 I.P.C. and 3/4 POCSO Act, P.S. Gazipur, District Fatehpur be released on bail on executing a 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 :- 30.10.2018 R./