Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
As per office report dated 31.08.2020, notice has been served on respondent no. 2, but none has appeared on his behalf.
This is second bail application filed by the applicant inF.I.R. No. 176 of 2016, under Sections 363, 376 Gha IPC and Section 3/4 POCSO Act, Police Station Malihabad, District Lucknow with the prayer to enlarge him on bail.
Learned counsel for the applicant submits that applicant has falsely been implicated in the present case by the father of the prosecutrix with the allegation that the prosecutrix is missing since 24.06.2016 and he is having apprehension that she was abducted by the applicant and other co-accused. It is further submitted that prosecutrix was recovered on 28.06.2016 and her statement was recorded under Section 161 Cr.P.C. on 01.07.2016. She was also medically examined. Learned counsel for the applicant submits that during the course of medical examination, slide of vaginal smear was also prepared and sent for pathological examination. It is vehemently submitted that in the said report, no spermatozoa was found and, therefore, the medical report does not support the prosecution story. It is next submitted that charge sheet was filed by the Investigating Officer. Thereafter, case was committed to the session and after framing of charges, prosecutrix was examined as P.W. 2 before the trial court and in her cross-examination, she denied the prosecution story. Learned counsel for the applicant also submits that date of birth of the prosecutrix is 10.02.1996 and, therefore, at the time of alleged incident, she was aged about 20 years. It is also submitted that in the year 2018, her marriage was also solemnized with another person and she is enjoying her matrimonial life. She is also having a kid out of the wedlock. It is lastly submitted that as the prosecturix has herself not supported the prosecution version in her statement deposed before the court below, the applicant, who has no criminal antecedent and in jail since 20.07.2016, is entitled for bail. It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.
Learned A.G.A. opposes the prayer for grant of bail to the applicant, but does not dispute that prosecutrix was examined and cross-examined before the trial court and in her cross-examination before the trial court, she has not supported the prosecution version.
Considering the rival submissions of learned counsel for parties and going through the contents of F.I.R., statement of the prosecutrix deposed before the trial court, I am of the view that the applicant is entitled to be released on bail.
Let applicant -Rambali @ Balram be released on bail in F.I.R. No. 176 of 2016, under Sections 363, 376 Gha IPC and Section 3/4 POCSO Act, Police Station Malihabad, District Lucknow, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed forrecording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.
(5) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 25.8.2021 VKS