Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1705 of 2019 Applicant :- Suresh Opposite Party :- State Of U.P.
Counsel for Applicant :- Qazi Vakil Ahmad Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the order of this Court dated 11.01.2019, the Chief Metropolitan Magistrate, Kanpur Nagar has submitted a report regarding age of the prosecutrix in a sealed cover. The sealed cover has been opened in Court. It is exhibited and made part of the record.
A perusal of the medico legal report dated 16.01.2019 drawn up by a medical board of doctors shows that the age of the prosecutrix, on the basis of an ossification test and dental evaluation, has been estimated to be about 19 years.
This is an application for bail on behalf of the applicant, Suresh in connection with Case Crime No. 401 of 2018, under Section 354,323,506,376 IPC and Section 3/4 POCSO Act, P.S. Kalyanpur, District Kanpur Nagar.
Heard Sri Qazi Vakil Ahmad, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned A.G.A., along with Sri Ashutosh Srivastava 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, she has been opined to be 19 years. He submits that the provisions of the POCSO Act, therefore, would not be attracted. The learned counsel for the applicant submits that in the FIR lodged by the mother of the prosecutrix, the allegation is one of outraging the prosecutrix's modesty with no allegation of rape being there. In the statement of the first informant also the allegation is about outraging the prosecutrix's modesty, but with no allegation of rape. Likewise, in the statement of the prosecutrix under Section 161 Cr.P.C., the allegation that figures is one of outraging her modesty and, on protest, of assault and threat. There is no allegation of rape, it is pointed out by learned counsel in the statement of the prosecutrix under Section 161 Cr.P.C., most emphatically. It is pointed out that for the first time in the statement under Section 164 Cr.P.C., the prosecutrix has come up with a detailed allegation carrying a graphic description about rape, and also capturing those embarrassing moments on a video. Learned counsel for the applicant submits that the stand taken in the statement under Section 164 Cr.P.C. is not just an improvement to the prosecution case, but one that generically changes the nature of the prosecution case from one of molestation to a case of rape. It is submitted that looking to the aforesaid shifting stand of the prosecution, the prosecution is not at all dependable. He further submits that the applicant cannot be detained pending trial on the basis of such undependable allegations.
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 fact that the prosecution case has not only been improved from what it is in the FIR, and subsequent statement under Section 161 Cr.P.C., but generically changed to one of rape in the 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 Suresh involved in Case Crime No. 401 of 2018, under Section 354,323,506,376 IPC and Section 3/4 POCSO Act, P.S. Kalyanpur, District Kanpur Nagar 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 dates 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 22.1.2019 BKM/-