Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45805 of 2018 Applicant :- Purnavasi @ Naate Opposite Party :- State Of U.P.
Counsel for Applicant :- Dhirendra Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Purnavasi @ Naate, in Case Crime No.630 of 2018, under Section 376 IPC, and Section 3/4 POCSO Act, Police Station, Gulariha, District Gorakhpur.
Heard Sri Dhirendra Pratap Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that he has been falsely implicated on account of a dispute between the family members of the applicant and the prosecutrix relating to rights of drainage that lead to some exchange of sharp words and physical altercation between the family members. It is argued that in the FIR and the statement under Section 161 Cr.P.C., the case urged by the prosecutrix is one of molestation and outraging of her modesty on account of which the FIR was registered under Section 354 IPC, and Section 3/4 POCSO Act, with no charge under Section 376 IPC being there. Lateron, an allegation of ravishing the prosecutrix has been brought in for the first time under Section 164 Cr.P.C., and still later, in the statement made to the doctor at the time of medical examination, undertaken thirty days after the occurrence. It is further argued that going by the medico legal estimation of the prosecutrix's age, she has been opined by the Chief Medical Officer, Gorakhpur through his certificate dated 6.10.2018 based on an ossification test, to be aged above 18 years. It is argued that looking to the medically estimated age of the prosecutrix, the provisions of POCSO Act, are not attracted. It is further argued that in the earliest account of the occurrence found in the FIR that was lodged after complete facts were made known to the informant by the prosecutrix and also in the statement under Section 161 Cr.P.C., therebeing no allegation of rape, but outraging the modesty of the prosecutrix alone, the subsequent allegation of rape brought in through the statement under Section 164 Cr.P.C., and that made to the doctor clearly show it to be a case of improvement and vacillating stand which makes the prosecution case doubtful.
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 there is no case of rape indicated in the FIR or the statement of the prosecutrix under Section 161 Cr.P.C., that has been subsequently introduced through a statement under Section 164 Cr.P.C., and also the fact that the prosecutrix is a major, where the provisions of POCSO Act are not attracted, 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 Purnavasi @ Naate, in Case Crime No.630 of 2018, under Section 376 IPC, and Section 3/4 POCSO Act, Police Station, Gulariha, District Gorakhpur 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 :- 30.11.2018 NSC