Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42986 of 2018 Applicant :- Rakesh Singh Alias Gahmari Opposite Party :- State Of U.P.
Counsel for Applicant :- Pankaj Kumar Rai Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance of the order of this Court dated 13.11.2018, the AGA has produced before the Court a copy of the medico legal report dated 26.11.2018 signed by the Chief Medical Officer, Ghazipur besides members of the medical board who on the basis of the X-ray reports doing an ossification test have opined the prosecutrix to be aged about 19 years. A copy of the said report that has been passed on to the Court by the learned AGA across the Bar is retained on record, and, made part of it.
This is a bail application on behalf of the applicant Rakesh Singh Alias Gahmari in connection with Case Crime No.01 of 2018 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Dildarnagar, District Ghazipur.
Heard Sri Pankaj Kumar Rai, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA along with Sri Ashutosh Srivastava, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that going by the medico legal report dated 26.11.2018, the prosecutrix has been opined to be 19 years. It is submitted that she, therefore, is clearly a major. Thus, the provisions of POCSO Act would not be attracted. Learned counsel for the applicant pointed out that in the statement of the prosecutrix under Section 161 Cr.P.C., she has clearly spoken exculpatory, and, said that she accompanied the applicant of her free will to Buxar and lived with him there. They returned to Bhadaura by a train and at the Bhadaura Railway station wherefrom they were proceeding to Kamakhya Mandir, were arrested by the police. During her medico legal examination, the prosecutrix has given a statement to the doctor which the doctor has recorded to the effect that the prosecutrix was in love with the applicant for the past four years but her family was against the said proposal. As such, she eloped with the applicant to Ghazipur where she stayed with him for ten days and from there, the couple went to Buxar. After that, the two came back Badhaura wherefrom they were arrested by the police. It is also recorded that both have had physical contact for the past four years. In the statement under Section 164 Cr.P.C. also, the prosecutrix has reiterated in the first part of her assertion regarding elopement with Rakesh, the applicant to Ghazipur and Buxar but in between there is a discordant statement that Rakesh ravished her. In this regard, learned counsel for the applicant submits that the discordant note is on account of the fact that she was under pressure of her family who made her speak both exculpatory and inculpatory under Section 164 Cr.P.C. Learned counsel for the applicant submits that in any case, the prosecution version stands on very shaky ground.
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 clearly a major going by the medico legal estimation of her age, and, the fact that she has largely spoken exculpatory in favour of the applicant where she says she has eloped with the applicant of her free will, 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 Singh Alias Gahmari involved in Case Crime No. 01 of 2018 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Dildarnagar, District Ghazipur 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 :- 30.11.2018 Deepak