Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40809 of 2018 Applicant :- Vivek Kumar Chamar Opposite Party :- State Of U.P.
Counsel for Applicant :- Ram Anuj Prajapati Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Vivek Kumar Chamar in connection with Sessions Trial No.163 of 2018 arising out of Case Crime No.535 of 2018 under Sections 363, 366-A, 376 (3) I.P.C. and 3/4 of POCSO Act, 2012, P.S. Baragaon, District Varanasi.
Heard Sri Ram Anuj Prajapati, learned counsel for the applicant and Sri D.P.S.Chuahan, learned AGA along with Sri Rohit Pandey, learned counsel on behalf of the State.
The submission of learned counsel for the applicant is that going by medico legal estimation of her age, she was found to be aged between 15-16 years. Thus going by the usual allowance of two years to the benefit of the accused, she would be either a major or almost a major. Learned counsel submitted that a perusal of the statement of the prosecutrix under Section 164 Cr.P.C., recorded on 19.07.2018, shows that the prosexutrix in unqualified terms says that she forced the applicant to take her away and it was on her insistence that he took her along on his motor-cycle. It has also been said by the prosecutrix that she lived at the place of a friend of the applicant but has not established physical relations. It is also said that she told the police out of fear and pressure that she was ravished. It is also said that it was on the advice of brother of the applicant, Rahul, she returned home. It is also said by the prosecutrix that she was in love with the applicant, and, therefore, accompanied him leaving home. In the face of this evidence, learned counsel submits that no case against the applicant is made out. It is also argued that the applicant did not take the prosecutrix out of the custody of her lawful guardian but she left of herself accompanying him.
Learned AGA has opposed the prayer for bail but does not dispute the fact that the statement of the prosecutrix recorded under Section 164 Cr.P.C., is exculpatory so far as the prosecutrix is concerned.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of punishment, the evidence appearing in the case, in particular, the statement of the prosecutrix recorded under Section 164 Cr.P.C., 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 Vivek Kumar Chamar in connection with Sessions Trial No.163 of 2018 arising out of Case Crime No.535 of 2018 under Sections 363, 366-A, 376 (3) I.P.C. and 3/4 of POCSO Act, 2012, P.S. Baragaon, District Varanasi 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 :- 26.10.2018 R./