Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2653 of 2019 Applicant :- Rishi Opposite Party :- State Of U.P.
Counsel for Applicant :- Suresh Dhar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Rishi in connection with Case Crime No. 757 of 2018, under Sections 376,511,506 IPC and Section 3/4 POCSO Act, P.S. Tilhar, District Shahjahanpur.
Heard Sri Suresh Dhar Dwivedi, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A., along with Sri Ashutosh Srivastava, learned counsel appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age as determined by the Medical Officer, District Women Hospital, Shahjahanpur vide his report dated 15.10.2018, she is about 16 years old. The aforesaid age has been estimated on the basis of an ossification test. The learned counsel for the applicant submits that making allowance for the usual variation of two years, the prosecutrix would reckon to be a major and, therefore, the provisions of the POCSO Act would not be attracted. It is submitted that the FIR lodged by the father of the victim carrying a full account of the occurrence, speaks only about an allegation of attempt against the applicant and the co-accused Tanishk, but not one of rape. Likewise, in the statement of the prosecutrix under Section 161 Cr.P.C. recorded on 06.10.2018 the allegation again is one of attempt, but not of an accomplished act. In the statement made to the doctor, the case has been improved to one of rape with an allegation against the applicant and co-accused, Tanishk, and another unknown of ravishing the prosecutrix at gun point. Again, by contrast in the statement under Section 164 Cr.P.C., the allegation of rape is specifically made against Chhotu @ Tanishk, whereas the role assigned to the applicant and the third unnamed offender is of standing guard outside the house, where the ill deed is said to have been done. The submission of the learned counsel for the applicant is that the prosecution case is not consistent, and is one that has been improved from that in the FIR and the statement of the prosecutrix, to that in the statement made to the doctor, and before the Magistrate under Section 164 Cr.P.C. He submits that, therefore, the prosecution is shaky and not dependable. It is further submitted that even if the statement under Section 164 Cr.P.C. is to be believed as the most solemn account of the occurrence, the allegation against the applicant is one of standing guard outside, with no role of rape being assigned to him. It is in the last submitted that there is no external or internal injury sustained by the prosecutrix, as may be compatible with a case of rape.
Learned A.G.A. has 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 evidence appearing in the case, in particular, the fact that the prosecutrix is prima facie a major, the fact that the prosecution has been consistently improved from a case of attempt to accomplished rape, the fact that in the statement under Section 164 Cr.P.C. the role assigned to the applicant is one of standing guard outside but not of rape, the fact that the medico legal examination report is not prima facie compatible with a case of rape, 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 Rishi involved in Case Crime No. 757 of 2018, under Sections 376,511,506 IPC and Section 3/4 POCSO Act, P.S. Tilhar, District Shahjahanpur 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 21.1.2019 BKM/-