Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38640 of 2018 Applicant :- Smt. Sudha Opposite Party :- State Of U.P.
Counsel for Applicant :- Akhilesh Pandey,Rafeek Ahmad Khan Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Counter affidavit has been filed today on behalf of the State which taken on record.
This is an application for bail on behalf of Smt. Sudha, in Case Crime No.0062 of 2018, under Sections 376D, 323, 363, 366, 452, 506 IPC, and Section 4 of POCSO Act, Police Station Khanna, District Mahoba.
Heard Sri Viresh Mishra, learned Senior Advocate, assisted by Sri D.K. Tripathi, learned counsel for the applicant and Sri M.P. Singh Gaur, learned AGA along with Sri Avanish Shukla, appearing on behalf of the State.
The submission of the learned counsel for the applicant is that though the statement under Section 164 Cr.P.C., is inculpatory, the prosecution version has been improved throughout. In the FIR lodged by the father of the prosecutrix there is an allegation of his daughter being enticed away by unknown persons. Lateron, after recovery, the statement of the prosecutrix recorded under Section 161 Cr.P.C., shows that she was ravished by a number of persons, in different incidents, at different places, including different cities. It is mentioned in the passing that the applicant would make the prosecutrix talk to boys without specifying their names. In the statement under Section 164 Cr.P.C., the allegation against the applicant is of encouraging the prosecutrix to talk to boys and a specific allegation that on 30.5.2018, she picked up the prosecutrix in a Marshal Car driven by her husband and her son where she, along with her son made her sniff some deleterious substance, that put her to sleep. She claimed to have regained consciousness by time she was in Banda. It is alleged that she was ravished by two boys, who are nephews of the applicant's husband. Learned Senior Counsel has pointed out that in the statement made to the doctor in confidence, and, duly signed during her medical examination, there is a mention of the prosecutrix being ravished by different boys, in different places, and towns, but there is no mention of the applicant's involvement there. It is argued that the medico legal report shows that there is no injury seen to her private parts. The report is not compatible with the account of repeated rape. It is submitted that the entire prosecution story is one that has been consistently improved and is vacillating and varying. It is also argued that so far as the applicant is concerned, she is a woman and the allegation relating to her in the statement under Section 164 Cr.P.C., is not credit worthy seen together with the other versions of the various incidents, narrated by the prosecutrix. It is submitted by the learned Senior Counsel that going by the report of the Chief Medical Officer, Mohoba dated 13.08.2018 based on an ossification test, the prosecutrix is aged about 18 years, and, therefore, is a major. He submits that the provisions of POCSO Act would, therefore, prima facie not be attracted.
Learned AGA has submitted that the name of the applicant does find place in the statement of the prosecutrix under Section 164 Cr.P.C. It is, however, not disputed that the applicant's name does not find place in the account given by the prosecutrix under Section 161 Cr.P.C., except for a marginal hint of it, and, in the statement made to the doctor during the medico legal examination.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, the evidence appearing in the case, in particular, the improvement in the prosecution case besides the vacillating and varying statement of the case across various statement by the prosecutrix, 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 Smt. Sudha, in Case Crime No.0062 of 2018, under Sections 376D, 323, 363, 366, 452, 506 IPC, and Section 4 of POCSO Act, Police Station Khanna, District Mahoba be released on bail on executing her 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 :- 30.10.2018 NSC