Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48910 of 2018 Applicant :- Rohit @ Amar Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Sheetala Prasad Pandey Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Certified copy of the medico legal examination report relating to the prosecutrix's age, signed by a medical board and by the Chief Medical Officer, Basti dated 23.07.2018 has been produced before the Court. It is taken on record.
This is a bail application on behalf of the applicant Rohit @ Amar Kumar in connection with Case Crime No. 112 of 2018 under Section 363, 366, 376 IPC and Section 5/6 Protection of Children from Sexual Offences Act, P.S. Walterganj, District Basti.
Heard Sri S.P. Pandey, learned counsel for the applicant and Sri Sudhir Kumar Pathak, 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 the prosecutrix's age indicated in the opinion of the medical board dated 23.07.2018, the prosecutrix, on the basis of an ossification test, has been opined to be 16 years. The submission is that giving the usual allowance of two years, the prosecutrix would reckon to be 18 years, and, therefore, a major. It is also pointed out that the prosecutrix in her statement recorded before the police has claimed herself to be 19 years of age. Though, in the statement under Section 164 Cr.P.C., she is recorded as 15 years (not part of her statement). The submission is that the prosecutrix by the medico legal estimation of age being a major, the provisions of POCSO Act would not be attracted. Learned counsel for the applicant has taken the Court through the statement of the prosecutrix under Section 164 Cr.P.C. The prosecutrix there has indicated that she went out along with the applicant on the applicant's calling her over and proceeded to different places and towns along with him voluntarily. She stayed at Delhi for 25 days in a room that the applicant arranged and rented. It is further said that the applicant's mother called the two to Ayodhya, where the applicant's mother got the two married. Subsequently, the prosecutrix returned to her parent's home. It is submitted that the entire statement under Section 164 Cr.PC.. is exculpatory, and, shows that the prosecutrix was into a relationship with the applicant and married him. Learned counsel for the applicant has invited the attention of the Court to the statement under Section 161 Cr.P.C. where the prosecutrix has categorically supported the fact that she went along with the applicant of her own, even threatened him to commit suicide. The statement under Section 161 Cr.PC. is also, therefore, clearly exculpatory in the submission of learned counsel for the applicant.
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 prima facie going by the medico legal estimation of prosecutrix's age, she is a major and the statement under Section 164 Cr.P.C. is also prima facie exculpatory as also that under Section 161 Cr.PC., 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 Rohit @ Amar Kumar involved in Case Crime No. 112 of 2018 under Section 363, 366, 376 IPC and Section 5/6 Protection of Children from Sexual Offences Act, P.S. Walterganj, District Basti 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