Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42671 of 2018 Applicant :- Suraj Majhi Opposite Party :- State Of U.P.
Counsel for Applicant :- Shitala Sahay Srivastav,Sudhir Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Suraj Majhi, in connection with S.T. No. 66 of 2018 arising out Case Crime No.99 of 2018, under Sections 376, 504, IPC, and Section 3/4 POCSO Act Police Station Jigna, District Mirzapur.
Heard Sri Shitala Sahav Srivastav, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Ashutosh Diljan, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that he has been falsely implicated in the present crime alleging rape of her 14 years old daughter, the prosecutrix who had gone to bathe in the Ganga along with her younger sister. The applicant is said to have dragged her into the river stream and ravished her by force under threat of drowning her to death. The prosecutrix, in her statement under Section 161 Cr.P.C., has also echoed the informant's version again in falsehood, as the learned counsel for the applicant would submit. It is pointed out by learned counsel for the applicant that he has been falsely implicated in the case on account of local village politics where he is differently aligned from the prosecutrix's family. It is emphasized that the prosecution is not at all corroborated by the medico legal report dated 4.6.2018, which does not show any such injury that may stand compatible with the allegations. He submits that all the more important is the fact that the incident is one dated 1.6.2018 and the medical examination is said to have taken place on 04.06.2018. There is an averment in paragraph-11 of the affidavit in support of the bail application that the first informant and the prosecutrix have testified at the trial, but they have not supported the prosecution. Here it may be noticed that no copies of the deposition of the prosecutrix and the informant, if any, have been brought on record in order to substantiate the plea in paragraph-11 of the affidavit. It is also submitted by learned counsel for the applicant that the occurrence is said to have taken place at a public place, where it is not possible to have happened at all, in the manner alleged making it all an incredible allegation. Learned counsel for the applicant submits that on the said facts the applicant is entitled to bail, pending trial.
Learned AGA has opposed the prayer for bail and submits that going by the medico legal estimation of the prosecutrix's age, done by the Senior Radiologist, District Hospital, Mirzapur, vide his report dated 5.6.2018, she has been opined to be 15 to 16 years old. The aforesaid estimation is based on an ossification test. Learned AGA submits that even if the maximum permissible allowance of two years variation to the benefit of the accused were given, the prosecutrix would still not be a major and, therefore, the provisions of the POCSO Act would be attracted. He has further submitted that the allegation of rape against the applicant stand on a consistent account coming from the first informant, who is the prosecutrix's mother, detailed in the FIR, that have been echoed in the statement of the prosecutrix under Section 161 Cr.P.C., as also under Section 164 Cr.P.C., besides that made to the doctor in confidence, where too the allegation of rape finds place against the applicant. The statement before the doctor is recorded at page-42 of the paper book.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of the allegations, the severity of punishment, and, in particular the fact that there is a consistent account in the FIR, the statement under Section 161, 164 Cr.P.C., and that made to the doctor, the fact that the prosecutrix is a minor where the provisions of the POCSO Act are attracted, but without expressing any opinion on merits, this Court does not finds it to be a fit case for bail.
The bail application, accordingly, stands rejected at this stage. However, looking to the period of detention of the applicant, it is directed that trial pending before the concerned court be concluded expeditiously and preferably within six months from the date of receipt of a certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the judgment of the Hon'ble Supreme Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court shall initiate necessary coercive measures for ensuring their presence.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 22.1.2019 NSC