Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49132 of 2018 Applicant :- Sumit Opposite Party :- State Of U.P.
Counsel for Applicant :- Kamlesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Sumit in connection with Case Crime No. 376 of 2018, under Sections 376, 323, 504, 506 IPC and Section 3/4 POCSO Act, P.S.
Saurikh, District Kannauj.
Heard Sri Dilip Singh Yadav holding brief of Sri Kamlesh Kumar Singh, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned A.G.A., alongwith Sri Ashutosh Diljan appearing for the State.
The submission of the learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, based on an ossification test, the Chief Medical Officer, Chhibramau, Kannauj by his certificate dated 01.08.2018, has opined her to be aged about 18 years. It is submitted that looking to the aforesaid medically estimated age, the prosecutrix is 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 statement of the prosecutrix under Section 164 Cr.P.C., which shows that she became friends with the applicant during time when she had gone over to her sister while she was in the family way and was about to be blessed with a child. The applicant is her elder sister's brother-in-law (Devar). The statement shows that the applicant and the prosecutrix entered into a relationship, where sexual relations were acknowledged by the prosecutrix by her consent, on the understanding that the two would marry. It is said that later on, the applicant settled for a marriage elsewhere, and, broke his promise to marry. The submission of the learned counsel for the applicant is that assuming the said allegations to be correct, it is no more than a relationship, not working out, and, a breach of promise to marry, where there was no intention to cheat at the inception. In these circumstances, no case of rape can be said to be made out.
Learned A.G.A. has opposed the prayer for bail.
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 prosecutrix is prima facie a major, the parties were into a relationship continuing for a period of one year, the parties had marriage in contemplation where the relationship did not work out and the marriage was called off, the fact that there is no evidence to indicate prima facie that there was an intention to cheat at the inception of the relationship, 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 Sumit involved in Case Crime No. 376 of 2018, under Sections 376, 323, 504, 506 IPC and Section 3/4 POCSO Act, P.S. Saurikh, District Kannauj 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 :- 20.12.2018 BKM/-