Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40820 of 2018 Applicant :- Tekan Opposite Party :- State Of U.P.
Counsel for Applicant :- Arun Kumar Vishvakarma Counsel for Opposite Party :- G.A.,K.S.Chahar A/K 370/12
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Tekan in connection with Case Crime No. 656 of 2018, under Section 376-D, 366-A I.P.C. and Section 3/4 POCSO Act, P.S. Kosi Kala, District Mathura.
Heard Sri Arun Kumar Vishvakarma, learned counsel for the applicant and Sri Akhilesh Kumar Mishra, learned A.G.A., along with Sri Ashutosh Srivastava appearing for the State.
The submission of the learned counsel for the applicant is that the prosecutrix is not a minor. As per her high school certificate, her recorded date of birth is 07.03.2001, by which she reckons to be 17 years on the day of occurrence. By the said date of birth recorded on the prosecutrix's High School Certificate, she is clearly a minor and a child within the meaning of the POCSO Act. The learned counsel for the applicant has not placed before the Court any medico legal estimation of the prosecutrix's age that may show her age to be different from what is recorded in her high school certificate. Looking to the allegation in the statement under Section 161 and 164 Cr.P.C., a case of rape is consistently alleged by the prosecutrix against the applicant and the co-accused, Kuldeep. In the statement made to the doctor during her medico legal examination also, which finds place at page 46 of the paper book, it is recorded that the two accused ravished her by describing it "galat kam kiya tha".
The learned A.G.A. has opposed the prayer for bail and submits that the prosecutrix is a child and, therefore, the offence is one prima facie under the POCSO Act, there is consistent allegation of the prosecutrix regarding rape in her statement under Section 161 and 164 Cr.P.C. and before the doctor.
Considering the 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 the prosecutrix has come up with a consistent case of rape in the statement under Section 161 and 164 Cr.P.C., and, that made to the doctor, besides the fact that the prosecutrix is prima facie a minor going by her date of birth recorded in her high school certificate, but without expressing any opinion on merits, this Court does not find it to be a fit case for bail at this stage.
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 recent 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 :- 18.12.2018 BKM/-