Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40957 of 2018 Applicant :- Rakesh Kumar Opposite Party :- State Of U.P. Counsel for Applicant :- Ajay Pandey Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Rakesh Kumar in connection with Case Crime No. 474 of 2017 under Section 363, 366, 376(2) Jha IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Kokhraj, District Kaushambi.
Heard Sri Ajay Pandey, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of learned counsel for the applicant is that going by the medico legal estimation of prosecutrix's age certified by the Chief Medical Officer, Kaushambi vide his certificate dated 10.9.2018 based on an ossification test, the prosecutrix is aged about 18 yeas. It is submitted that the prosecutrix is clearly a major, and, therefore, the provisions of POCSO Act would not be attracted. Learned counsel for the applicant has taken the Court through the statement of the prosecutrix recorded under Section 164 Cr.P.C. where she has spoken exculpatory, and, submitted that she has gone along with Rakesh, the applicant of her free will, and, that she has married Rakesh. It is also pointed out by the learned counsel for the applicant that the same stand has been adopted by the prosecutrix in her statement to the doctor during her medico legal examination where she says that she went along with the applicant of her free will. The aforesaid statement to the doctor finds place at page no. 25 of the paper book. It is also pointed out that the applicant and the prosecutrix together have filed Criminal Misc. Writ Petition No. 24580 of 2017, where the prosecutrix appeared before this Court and supported her marriage to the applicant and also her age, where there was a stay of arrest granted by this Court until further orders. Learned counsel for the applicant has drawn the attention of this Court to a direction in the order dated 09.11.2017 passed in the writ petition above referred which reads as under:
"Let a copy of the order be forwarded to the concerned SSP/SP through the office of the Government Advocate who after receipt of the order shall ensure the safety of the petitioners and shall also ensure that the family members of the victim do not cause any harm or injury to the petitioners and shall ensure fair investigation of the matter without any whims, caprice or personal notion of morality."
It is submitted that despite there being clear evidence that the prosecutrix is a major and her stand that she has married the applicant of her free will, the Investigating Officer, on account of a pedantic and hidebound personal outlook of social values, has filed a charge sheet against the applicant which is not worth a trial.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecutrix is a major and the fact that she has spoken exculpatory 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 Rakesh Kumar involved in Case Crime No.
474 of 2017 under Section 363, 366, 376(2) Jha IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Kokhraj, District Kaushambi 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 :- 19.12.2018 Deepak