Bail application in a POCSO case under IPC 376. Court held applicant entitled to release on personal bond and two sureties without expressing opinion on merits due to lack of prosecution witness support and inconclusive medical evidence.
Release on bail on personal bond and two sureties in like amount.
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Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29757 of 2018
Applicant :- Vinay Kumar Opposite Party :- State Of U.P. Counsel for Applicant :- Sudhir Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
The present bail application has been filed by the applicant in Case Crime No. 175 of 2017, u/s 376(za)(zha) IPC and 3/4 POCSO Act, P.S. Gola, District Gorakhpur with the prayer for enlarging him on bail.
It is submitted by learned counsel for the applicant that the applicant has been falsely implicated in this case. It is argued that the prosecutrix is aged about 17 years and the allegation of rape as alleged by the prosecutrix is not supported by the medical evidence. The doctor has noted that there is no physical or genital injury seen on external or internal parts of the prosecutrix. Lastly he contended that during trial the first informant-PW-1, the prosecutrix-PW-2 and other eye witnesses, sister of the prosecutrix, all of them have not supported the prosecution case in their examination in chief and have been declared hostile, therefore, there is not an iota of evidence to connect the applicant with the present case. The applicant is in jail since 9.7.2017.
Learned A.G.A. has opposed the prayer for bail and submitted that the prosecutrix has supported the version in her statement u/s 164 Cr.P.C. However he could not dispute that all witnesses of fact have not supported the prosecution version.
In view of the facts and circumstances of the case and submissions made by learned counsel for the applicant and without expressing any opinion on the merits of the case the applicant is entitled to be released on bail.
Let the applicant Vinay Kumar involved in the aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii)The applicant will appear before the trial court on the date fixed.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 9.8.2018 Dhirendra/
2 issues framed by the court
Whether the applicant is entitled to bail in a POCSO case involving allegations of rape where medical evidence does not support physical or genital injury.
Whether the hostility of prosecution witnesses entitles the applicant to bail under Section 437/439 Cr.P.C.
Vinay Kumar
Rajul Bhargava
Dhirendra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
