Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41049 of 2018 Applicant :- Rahul Saxena Opposite Party :- State Of U.P.
Counsel for Applicant :- Pratibha Singh,Ashok Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Rahul Saxena in connection with Case Crime No. 59 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO act, P.S. Kotwali Nagar, District Etah.
Heard Sri Ashok Kumar Singh, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA alongwith Sri Ashutosh Srivastava appearing for the State.
The submission of the learned counsel for the applicant is that there is no issue between the parties that the prosecutrix is a major and in this regard learned counsel for the applicant has referred to her high school certificate, where her recorded date of birth is entered as 25.01.2000. It is submitted that the stand of the prosecutrix has not been consistent, and, one that is so vacillating that the prosecution is entirely undependable. In the statement under Section 161 Cr.P.C., the prosecutrix has said that she went alongwith the applicant and co-accused, Imran on 08.01.2018 in the evening hours at 5.00 p.m. on an auto rickshaw, where the applicant told the prosecutrix that he wants to elope with her and she went alongwith him. It is said that the two first proceeded by that auto rickshaw to the bus stop and boarded a Bareilly bound bus. At Bareilly, the two boarded a train to Chandigarh where they stayed in a house for five days. Thereafter, they rented accommodation in Chandigarh and stayed there for six to seven days. It is said in the statement that the two lived together like friends. They fought over some issues, in consequence of which she called her father, who came but could not locate her. It is also said in the aforesaid statement that the two did not have any physical relations. However, in the said statement it is added that the applicant tried to be physically intimate but there was no physical contact. It is pointed out that in the statement under Section 164 Cr.P.C. a completely different story has been set up by the prosecutrix where she said that the applicant sent her a sweet (Laddu) through a common acquaintance, Imran, saying that it was a Laddu from a Dargah. She came inside and ate the sweet, thereafter, she came under a spell. She would do anything the applicant asked her. He, on 6.1.2018 at 7.00 p.m. called her out of her house and said that he wants to elope with her. She came back inside her house and on the following evening on 7.1.2018 staying under the spell eloped with the applicant boarding an auto rickshaw. They proceeded to the bus stand, boarding a bus to Bareilly, wherefrom they proceeded to Chandigarh. It is said that at Chandigarh, the two stayed at the house of one Viresh where the applicant had forcible sex with her/ravished her. It is said that it was afterwards that the spell cast on account of consuming the sweet (Laddu) disappeared, she called her father, who was on way when Rahul (the applicant) took her to Etah and arrived there on 3.2.2018 and the police rescued her at the Etah bus stand while arresting Rahul. The submission is that the story under Section 164 Cr.P.C. is almost incredible, if not fantastic. Even if the story were to be believed the account in the statement under Section 161 Cr.P.C. is incompatible, where there is no allegation of rape, that has been brought in for the first time through the statement under Section 164 Cr.P.C. It is in the aforesaid premises that the learned counsel for the applicant submits that the prosecution case is entirely unreliable.
Lerarned A.G.A. 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 evidece appearing in the case, in particular, the fact that there is no allegation of rape in the statement under Section 161 Cr.P.C. that has figured in the statement under Section 164 Cr.P.C. besides the fact that the statement under Section 164 CrP.C. carries allegation that are rather incredible prima facie, 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 Rahul Saxena involved in Case Crime No. 59 of 2018, under Sections 363,366,376 IPC and Section 3/4 POCSO act, P.S. Kotwali Nagar, District Etah 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/-