Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2610 of 2019 Applicant :- Pankaj Opposite Party :- State Of U.P.
Counsel for Applicant :- Satish Kumar Tyagi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Pankaj, in Case Crime No.1071 of 2017 under Sections 363, 354, 354(A), 376 IPC, and Section 3/4 POCSO Act, Police Station Sihani Gate, District Ghaziabad.
Heard Sri Satish Kumar Tyagi, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, determined by the Chief Medical Officer, Ghaziabad, vide his certificate dated 20.4.2018, she has been opined to be aged about 16 years. The report aforesaid is based on an ossification test and also dental status. The submission of learned counsel for the applicant that making allowance for the usual variation of two years in age, the prosecutrix would reckon to be a major. He further submits that on this account, the provisions of the POCSO Act would not be attracted. It is, in particular, argued by learned counsel for the applicant that in the FIR, lodged by the mother of the prosecutrix, which is an informed FIR, there is no allegation of rape against the applicant, but a vague allegation of molestation. In the statement under Section 161 Cr.P.C. of the prosecutrix also there is no allegation but of molestation alone with no case of rape. However, in the statement of the prosecutrix recorded on 5.01.2018, that is to say six months after the alleged occurrence, an allegation of rape has figured against the applicant. Likewise, in the statement under Section 164 Cr.P.C., there is an allegation of rape. The said statement under Section 164 Cr.P.C., has been recorded one year after the occurrence. The submission of learned counsel for the applicant is that the statement under Sections 161 and 164 Cr.P.C., that are distanced in time by six months and one year from the occurrence are the outcome of torture done by the family for reasons best known to them, but the fact remains that in the FIR, giving rise to the crime, the allegation is one of molestation and not rape. It is alleged that the prosecution has through subsequent statements attempted to prove the prosecution case based on afterthought, which makes the prosecution undependable. Learned counsel for the applicant has further invited the attention of the Court to the fact that the prosecutrix has declined to undergo a medical examination to determine the truth of the allegation, as would appear from an endorsement of three doctors of the District Women Hospital, Ghaziabad, a copy of which is annexed at Page-40 of the paper book. It is submitted that the refusal to undergo a medical examination, may be at a late stage, is telltale of the falsity of the prosecution case.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that the prosecutrix is prima facie a major, the fact that the case set out in the FIR is one of molestation that has been improved to one of rape during investigation, the fact that the prosecutrix has refused to undergo a medical examination to determine the truth of the allegation, 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, in Case Crime No.1071 of 2017 under Sections 363, 354, 354(A), 376 IPC, and Section 3/4 POCSO Act, Police Station Sihani Gate, District Ghaziabad 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 :- 21.1.2019/NSC