Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25720 of 2016 Applicant :- Vijay Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Two supplementary affidavits are filed today on behalf of the applicant are taken on record.
This is a bail application on behalf of the applicant Vijay in connection with Case Crime No. 186 of 2014 under Section 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station Phaphund, District Auraiya.
Heard Sri Anand Pati Tiwari, 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 the applicant has been falsely implicated in the present crime, where the FIR was initially lodged under Sections 363, 366 IPC, but subsequently on the basis of statements of the prosecutrix recorded during investigation, in particular, the one under Section 164 Cr.P.C, the applicant was "challaned" under Section 376 IPC and Section 3/4 POCSO Act, in addition. Learned counsel for the applicant has pointed out that going by the medico legal estimation of the prosecutrix's age, as determined by the Medical Officer, Community Health Centre, Auraiya, based on an ossification test, she has been opined to be aged about 17 years. Learned counsel for the applicant submits that making allowance for the usual variation of two years, or even one, in the medically estimated age, the prosecutrix would reckon to be a major. He submits, therefore, that the provisions of the POCSO Act, would not be attracted. Learned counsel for the applicant has taken the Court through the statement of the prosecutrix recorded in the ongoing trial being Special S.T. No.51P/14 State Vs. Vijay and Another, where she has completely disowned the prosecution case in her examination-in-chief, deposing as PW-4 on 16.02.2018, a copy of her testimony during trial being annexed as Annexure- SA-1 to the supplementary affidavit dated 27.03.2018. A perusal of the same shows that the prosecutrix has said that she does not know the applicant but knows his father, who is related to her as uncle (Fufa). She has said that the applicant did not take her away by blandishment and that on sighting the accused in Court said that the man present in Court is Vijay, whom she knows, is the son of her uncle (Fufa). It is also said specifically that he never took away the prosecutrix or ravished her. She was declared hostile and cross- examined, which she has withstood disowning all allegations of rape attributed to her during investigation against the applicant. A perusal of the cross-examination shows that the entire statement of the prosecutrix under Section 164 Cr.P.C., was put to her and after being confronted with the same, she said that she did make this statement before the Magistrate, but the statement was made under pressure of the police. She further stated that it is wrong to say that she had made an inculpatory statement of her free will under Section 164 Cr.P.C. and is now trying to come to the applicant's rescue, as he is her uncle's son. Likewise, in the trial, the father of the prosecutrix and the first informant, has also spoken exculpatory and explained the circumstances under which the applicant came to be falsely implicated, at the instance of natives of the village and lateron, of the police. To the like effect is the deposition of the mother of the prosecutrix PW-2 who has also deposed exculpatory in favour of the applicant. The submission of learned counsel for the applicant is that looking to the state of evidence now obtaining on record, there is no justification to detain the applicant, pending trial.
Learned AGA has opposed the prayer for bail and submits that the assessment of evidence lies in the province of the Trial Court to undertake, and not this Court in a bail matter.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, in particular, the fact that the prosecutrix and the other witnesses have testified exculpatory in the ongoing trial, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed.
Let the applicant Vijay involved in Case Crime No. 186 of 2014 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Phaphund, District Auraiya be released on bail on executing a 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 :- 22.1.2019 NSC