Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41909 of 2018 Applicant :- Pankaj Katheriya Opposite Party :- State Of U.P.
Counsel for Applicant :- Vivek Tripathi,Pratik J. Nagar Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the order of this Court dated 31.10.2018, the C.J.M., Kannauj has forwarded a report of the Medical Board constituted by the Chief Medical Officer, Kannauj in a sealed cover. The sealed cover has been opened under orders of this court. The report is perused, exhibited and shall form part of the record.
This is an application for bail on behalf of the applicant, Pankaj Katheriya in connection with S.T. No. 84 of 2018, arising out of FIR No. 211 of 2018, under Sections 354,452,376-D and 506 I.P.C. and Section 5 and 6 POCSO Act, P.S. Kotwali Kannauj, District Kannauj.
Heard Sri Prateek J. Nagar, learned counsel for the applicant and Sri Akhilesh Mishra, learned AGA alongwith Sri Ashutosh Srivastav appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of age, as would be evident from the report dated 06.11.2018 received today, the prosecutrix has been opined to be between 17 to 18 years which making allowance for the usual variation in the medically estimated age, would reckon to be 18 years or more. She is, thus, clearly a major.
It is submitted by the learned counsel for the applicant that though the prosecutrix has spoken inculpatory against the applicant in the statement under Section 161 and 164 Cr.P.C., in the ongoing trial being S.S.T. No. 64/18 and 84/18, she has deposed that the applicant and the two other co-accused are natives of her village. The applicant and the other co-accused have not molested her or outraged her modesty or done anything objectionable. The prosecutrix, on being confronted by her statement under Section 164 Cr.P.C., while acknowledging it to be her statement, has said that the same was made under fear of the police. She even said that she never told the Magistrate that any occurrence had happened or that the police were coercing her. In response to certain questions by the Court, in particular, as to why she has falsely implicated the applicant and other co-accused, who are in jail, she kept quite. In her cross examination by the accused, the prosecutrix said that she had given the statement before the Magistrate on account of being threatened by the police and disowned making any statement to the police or any occurrence having happened. Learned counsel has pointed out that the statement of the prosecutrix in the ongoing trial places the prosecution on such shaky ground that it would not be lawful to detain the applicant any further pending trial.
Learned A.G.A. has opposed the prayer for bail and pointed out that the statement of the prosecutrix in the ongoing trial is a matter to be appreciated by the trial court, and, not one that is to be considered for the purpose of the present bail application.
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 has spoken exculpatory in the ongoing trial and attributed her earlier statement under Section 164 Cr.P.C. to one made under threat and coercion of the police, 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 Pankaj Katheriya involved in S.T. No. 84 of 2018, arising out of FIR No. 211 of 2018, under Sections 354,452,376-D and 506 I.P.C. and Section 5 and 6 POCSO Act, P.S. Kotwali Kannauj, District Kannauj 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 :- 26.11.2018 BKM/-