Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52432 of 2021 Applicant :- Satishchandra @ Bhure Opposite Party :- State of U.P. and Another Counsel for Applicant :- Narendra Singh,Lal Vijai Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Lal Vijai Singh, learned counsel for the applicant and the learned A.G.A. for State.
2. Perused the record.
3. Instant bail application has been filed by applicant- Satishchandra @ Bhure seeking his enlargement on bail in Case Crime No. 157 of 2021 under Sections 376 (2) (L), 511 I.P.C. and 7/8 POCSO Act, Police Station-Ganjdundwara, District- Kasganj, during pendency of the trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 06.05.2021, a prompt F.I.R. dated 06.05.2021 was lodged by first informant Sri Vinod (father of prosecutrix) and was registered as Case Crime No. 157 of 2021 under Section 376 (2) (L) I.P.C. and 3/4 POCSO Act, Police Station-Ganjdundwara, District- Kasganj,. In the aforesaid F.I.R., applicant-Satishchandra @ Bhure has been nominated as solitary named accused.
5. In brief, as per the prosecution story as unfolded in the F.I.R. dated 06.05.20219, it is alleged that named accused, on 06.05.2021 applicant dislodged the modesty of the prosecutrix, namely, Shiwani, aged about 16-17 years, who is also mentally retarded.
6. Subsequent to aforesaid F.I.R., statement of prosecutrix was recorded under Section 161 Cr.P.C. by Investigating Officer on 07.05.2021. Same is on record as Annexure-2 to the affidavit. Prosecutrix was thereafter medically examined on the same day. Her Medico Legal Report is on record as Annexure-4 to the affidavit. Ultimately, statement of prosecutrix was recorded under Section 164 Cr.P.C on 25.05.2021, copy of which has been annexed as Annexure-6 to the affidavit.
8. Police upon completion of statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C., ultimately submitted a charge-sheet dated 16.06.2021 whereby applicant has been charge-sheeted under Section 376 (2 (L), 511 I.P.C. and Sections 7/8 POCSO Act.
9. Learned counsel for applicant submits that applicant is innocent. He has been falsely implicated in afore-mentioned case crime number. No conviction of applicant is possible on the allegations made in F.I.R., statement of prosecutrix as recorded under Sections 161 and 164 Cr.P.C. Applicant is a man of clean antecedents and has no criminal history to his credit. Applicant is in custody since 03.06.2021. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. It is next contended that as per statement of prosecutrix as recorded under Section 164 Cr.P.C., prosecutrix has disclosed her age about 15-16 years whereas the Doctor, who conducted medical examination of the prosecutrix has opined that prosecutrix is about 18 years. On the aforesaid premise, learned counsel for applicant contends that prosecutrix is major. He has then invited the attention of Court to the statement of prosecutrix as recorded under Sections 161 and 164 Cr.P.C. as well as statement of alleged eye witness namely Nirmala Devi. A parallel has been drawn with the statements of prosecutrix as recorded under Sections 161 Cr.P.C and Section 164 Cr.P.C., as well as statement of eye witness namely Nirmala Devi. On the aforesaid premise, learned counsel for applicant contends that prosecutrix has not been consistent. There are inherent contradictions in the same which clearly go to show the innocence of applicant. Placing reliance upon the judgement of Apex Court in Vineet Kumar and others Vs. State of U.P. and others, 2017(13) SCC 369, learned counsel for applicant contends that no conviction under Section 376 I.P.C is possible only on the statement of prosecutrix under Section 164 Cr.P.C. In the present case, prosecutrix has refused to get herself medically examined. It is lastly contended that prosecutrix is physically disabled to the extent of 75 %, which is clearly established from the recital contained in bail rejection order. As such, alleged incident has been engineered to falsely implicate the applicant. On the cumulative strength of aforesaid, learned counsel for applicant contends that applicant is liable to be enlarge on bail.
10. Per contra, the learned A.G.A. has opposed the present bail application. Learned A.G.A. submits that prosecutrix is a minor aged about 15 years. Alleged incident has been witnessed by Nirmala Devi who is an eye witness of occurrence. Applicant is guilty of dislodging the modesty of minor girl aged about 15 years. As such applicant does not deserve any sympathy of this Court.
11. Having heard learned counsel for applicant, learned A.G.A. for State, upon consideration of evidence on record, accusation made as well as complicity of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
12. Accordingly, bail application of applicant is allowed.
13. Let the applicant-Satishchandra @ Bhure involved in aforesaid case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison.
Order Date :- 21.12.2021 YK