Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45595 of 2018 Applicant :- Sanjiv Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Janardan Singh,Raj Kishor Mishra Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Sanjiv Kumar in connection with Case Crime No.115 of 2018, under Sections 363,376-D, 506 IPC and Section 3/4 POCSO Act, P.S. Madhuban, District Mau.
Heard Sri Sunil Kumar learned counsel for the applicant and Sri J.B. Singh learned A.G.A. alongwith Sri Abhinav Tripathi appearing for the State.
The submission of the learned counsel for the applicant is that according to the medico legal estimation of the prosecutrix's age, based on an ossification test, certified by the Medical Officer, CHC, Ghosi vide her certificate/medical report dated 23.8.2018, has been estimated to be either 18 years or more than 18 years. It is submitted by learned counsel that the prosecutrix is, therefore, clearly a major and the provisions of the POCSO Act would not be attracted. Learned counsel for the applicant has invited the attention of the Court to the FIR lodged six months after the occurrence, the occurrence being dated 02.10.2017 and the FIR being lodged on 02.04.2018, wherein it is acknowledged that the prosecutrix was taken away by the applicant alongwith Bechan Chauhan, co-accused, who are said to have ravished her together. It is pointed out that in the first information report, it is indicated that after committing the crime and moving her to another place when the applicant and co-accused, Bechan Chauhan were returning they were apprehended by the police at Sipah, where a constable caught the co-accused, Bechan Chauhan and recovered the prosecutrix from her custody, whereas the applicant, Sanjiv escaped.
Learned counsel for the applicant at this stage has invited the attention of the Court to a most unusual document that the police have drawn up. It is styled as a compromise signed by the father of the prosecutrix and father of the co-accused, Bechan Chauhan recorded at the police station with reference to a missing report (Gumsudgi) lodged on 03.10.2017, in relation to the disappearance of the prosecutrix at the time when she is alleged to have been abducted and ravished by the applicants. According to the said compromise, the parties settled the matter and the prosecutrix was allowed to go with her father, and, co- accused, Bechan Chauhan from whose custody she was recovered, was also allowed to go. It is submitted by learned counsel for the applicant that the prosecutrix was abducted by Bechan Chauhan alone and ravished by him. In case, when she was recovered from Bechan's custody, the police had acted in accordance with law and looking to the nature of allegations challaned him in the crime, the present FIR lodged six months later, through an application under Section 156(3) Cr.P.C. would not have been lodged on concocted allegations, based on afterthought and improvement. Learned counsel for the applicant has drawn the attention of the Court to the compromise dated 06.10.2017 recorded by the police where there is no mention of the applicant, which according to him, decisively shows that the applicant's name has been brought in lateron, based on afterthought, through the FIR lodged under Section 156(3) Cr.P.C., six months later. It is submitted that the statement under Section 164 Cr.P.C. is a parroted version of the belated FIR, lodged after six months.
Learned A.G.A. has opposed the prayer for bail but does not dispute the fact that the police did record a compromise on 6.10.2017 regarding repatriation of the prosecutrix to the custody of her father, where the name of the applicant does not figure.
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 name of the applicant does not figure in the document of so-called compromise, whereby the prosecutrix was recovered from the custody of co-accused, Bechan Chauhan, and, the fact that the FIR has been lodged six months after the prosecutrix's recovery prima facie based on afterthought, 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 Sanjiv Kumar involved in Case Crime No.115 of 2018, under Sections 363,376-D, 506 IPC and Section 3/4 POCSO Act, P.S. Madhuban, District Mau 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.
Order Date :- 29.11.2018 BKM/-