Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45349 of 2018 Applicant :- Vishnu Opposite Party :- State Of U.P.
Counsel for Applicant :- Hemendra Pratap Singh,Anshu Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Vishnu in connection with Case Crime No. 1339 of 2017, under Sections 363,376 IPC and Section 3/4 POCSO Act, P.S. Sadabad, District Hathras.
Heard Sri Hemendra Pratap Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing for the State.
The submission of the learned counsel for the applicant is that according to the medico legal estimation of age of the prosecutrix, based on an ossification test, the Chief Medical Officer, Hathras has opined her to be aged about 16 to 17 years. It is submitted by learned counsel for the applicant that considering the usual variation of two years to the benefit of the accused, in the medically estimated age, the prosecutrix would reckon to be a major. It is argued that, though, in the statement under Section 164 Cr.P.C., the prosecutrix has spoken inculpatory against the applicant and three other co-accused, her stand in the statement under Section 161 Cr.P.C. recorded on 07.11.2017, Annexure 2, is to the effect that she left home on account of atrocities of her family where there is nothing said about the applicant. Likewise, in her statement to the doctor during her medico legal examination that is duly thumb marked in the relevant column at page 30 of the paper book, it has clearly figured that the prosecutrix left home of her own accord on 05.11.2017 and returned on the following day on 06.11.2017. In the said statement, there is no mention about the applicant. Still, further in a supplementary statement under Section 161 Cr.P.C., where the prosecutrix has stated that she has left home because she is ill-treated there by her father because her mother is no more and she has a step mother. She has also said in the supplementary statement under Section 161 Cr.P.C. that she is a victim of domestic violence and exasperated over all that she left home virtually running for her life. Here she says that she left with the applicant with whom she is in love for the past one year. She has specifically said that no one enticed her away. She has also said in her statement aforesaid that she is confiding the aforesaid facts to the police in confidence, and, would never say so to the face of her family, of whom she in dread.
The submission of the learned counsel for the applicant is that the statement of the prosecutrix made twice over under Section 161 Cr.P.C. and before the doctor is absolutely exculpatory and, therefore, the statement under Section 164 Cr.P.C. falls under a grave cloud of doubt. He submits that the said statement has been made under fear of her family. It is also urged that the prosecutrix is clearly a major and no offence under the POCSO Act 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 and has spoken exculpatory in her statement under Section 161 Cr.P.C. as well as that to the doctor in confidence, even though, she has blamed the applicant 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 Vishnu involved in Case Crime No. 1339 of 2017, under Sections 363,376 IPC and Section 3/4 POCSO Act, P.S. Sadabad, District Hathras 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 :- 28.11.2018 BKM/-