Court No. - 41
Case :- CRIMINAL APPEAL No. - 672 of 2018 Appellant :- Rohit Ojha Respondent :- State Of U.P.
Counsel for Appellant :- Basant Kumar Upadhyay,Ritesh Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Aniruddha Singh,J.
Sri Mahendra Ram Maurya, Advocate filed is Vakalatnama on behalf of the appellant is taken on record.
According to office report, notices have been served on the opposite parties no. 2 and 3, but no one is present on behalf of the complainants.
Heard learned counsel for the appellant and learned AGA for the State and perused the record.
This criminal appeal has been filed against order dated 19.1.2018 passed by Additional Sessions Judge, Court No. 1, Ballia in Bail Application No.1786 of 2017 arising out of Case Crime No.236 of 2017, under Sections 363, 366, 506 IPC and Section 7/8 POCSO Act and 3(2)5 of S.T./S.T. Act, Police Station- Bariya, District- Ballia whereby bail application of appellant was rejected.
According to the prosecution case F.I.R. was lodged against five persons, namely, Rohit Ojha, Rahul Ojha, Nirmal Singh, Tikar Singh and Bhola Singh on 22.4.2017 after five days of the incident alleging that on 17.4.2017 they kidnapped the daughter of complainants to compel her marry. During investigation, prosecutorix was recovered and her statement was recorded under Section 164 Cr.P.C. she stated that she loves the present appellant and he had taken her by force and she lived nine days with the appellant, but no allegation of rape was made against the appellant; after investigation, except the present appellant, other four accused have been exonerated.
Learned counsel for the appellant submitted that the appellant is languishing in jail since 17.12.2017 (more than seven months); having no criminal history; there is no independent witness; he is a student of B.Sc.; according to medical report, the prosecutrix was 18 years of age, as annexed at page 56 of the memo of appeal; no offence under Section 363 I.P.C. is made out against the appellant; there is no allegation of rape and if he is enlarged on bail, he will not misuse the liberty of bail or tamper with the evidence. He further submits that there is no likelihood of case being heard in near future.
Learned AGA opposed the prayer for bail but admitted that the appellant has no criminal history.
For the foregoing discussions, facts of the case, nature of allegation and period of custody, gravity of offence, without expressing any opinion on the merits of the case, the Court is of the view that the appellant has made out a case for bail. The appeal is allowed. Impugned order dated 19.1.2018 rejecting bail of appellant is hereby set aside.
Let appellant Rohit Ojha involved in aforesaid case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:-
1. The appellant will not tamper with the evidence during the trial.
2. The appellant will not pressurize/ intimidate the prosecution witness.
3. The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The appellant 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Office is directed to send the lower court record to the concerned court immediately, if it has been received.
Order Date :- 26.7.2018 OP