Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23784 of 2018 Applicant :- Solu @ Vikas Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Chandra Prakash Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a second application for bail. The first bail application being Criminal Misc. Bail Application No.5440 of 2018 was dismissed for non prosecution on 19.3.2018 by Hon'ble U.C. Srivastava, J. Since his lordship is no longer available on the Bench of this Court, this matter has come up before me. This application for all purposes is heard as the first application.
This is an application for bail on behalf of the applicant Solu @ Vikas Kumar, in Case Crime No.827 of 2017, under Sections 363, 366, 354, 376, IPC, and Section 3/4 POCSO Act, Police Station, Cantt., District Varanasi.
Heard Sri Chandra Prakash Singh, learned counsel for the applicant and Sri J.B. Singh, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of the learned counsel for the applicant is that in the FIR, the categorical case is that on 12.8.2017 at 1:00 'O' Clock in the night hours, a boy from the Mohalla called Solu (the applicant) enticed away the informant's minor daughter aged about 16 years with the assistance of his uncle Rakesh and about 3 O' clock in the morning. Upon this fact coming to the notice of the informant, he called the police at dial 100, who swung into action and recovered the prosecutrix from a car parked within the boundary of the premises of the applicant's uncle, which was a government vehicle, in an objectionable position. The prosecutrix was recovered at 4 O' clock in the morning. It is alleged that the informant's minor daughter was kidnapped with the assistance of his uncle Rakesh, and, that the applicant outraged her modesty. It is also said that the police at dial 100 facility did not take any proceedings, on account of which the FIR was being lodged at the station. In the statement of the prosecutrix under Section 164 Cr.P.C., a completely different story has been narrated where it is acknowledged that the applicant Solu, who is a son to the prosecutrix's uncle (father's brother) forcibly took her away in the night of the 12th and raped her by force. It is alleged that she was kept in confinement by the applicant from 12th to 19th August, 2017. It is further said that in the night of 19.08.2017, she came back home by herself at 3 O' clock in the morning. It is pointed out that in the statement of the prosecutrix comes out a completely different story from that in the FIR. It is further pointed out that there is a property dispute between the father of the prosecutrix with the applicant's father, who are brothers, a fact that has been suppressed in the FIR but disclosed in the statement under Section 164 Cr.P.C. It is argued that the two prosecution versions in the FIR and that in the statement under Section 164 Cr.P.C., are so inconsistent that the prosecution has no feet to stand. It is also pointed out that the prosecutrix is clearly of matured years and has been medically opined to be aged about 19 to 20 years, going by the medico legal estimation of her age, as certified by the Chief Medical Officer, Varanasi vide his certificate dated 7.12.2017. He, therefore, submits that the provisions of the POCSO Act would even remotely be not attracted.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that prima facie the prosecution appears to have originated in a property dispute between two brothers, the version in the FIR is irreconcilably different from the case that the prosecutrix has given out in her statement under Section 164 Cr.P.C., 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 Solu @ Vikas Kumar, in Case Crime No.827 of 2017, under Sections 363, 366, 354, 376, IPC, and Section 3/4 POCSO Act, Police Station, Cantt., District Varanasi 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 :- 26.11.2018 NSC