This court allowed a bail application under the POCSO Act and IPC. The judge doubted the medical age determination totaling a minor status but held that the accused was a fit case for bail.
Programme to release the applicant on bail on executing a personal bond and furnishing two sureties.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39136 of 2018
Applicant :- Bablu Kumar Alias Suraj Kumar Opposite Party :- State Of U.P. Counsel for Applicant :- Kalp Nath Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Bablu Kumar alias Suraj Kumar in connection with Case Crime No.134 of 2018, under Sections 376(2)(n) of I.P.C. and 3/4 POCSO Act, P.S. Chetganj, District Varanasi.
Heard Sri Kalp Nath, learned counsel for the applicant and Sri Indrajeet Yadav, 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 medical determination of the prosecutrix's age certified by the Chief Medical Officer, Varanasi vide his certificate dated 08.06.2018 she is aged between 16-17.5 years. The Court is unable to appreciate how the doctor was able to opine about the determination of age in decimals. However, going by the usual allowance and variation in the estimated age of two years, the prosecutrix would reckon to be a major, aged 18 years or above. The Court has been taken to a summary of the statement of the prosecutrix recorded in the case diary where the Investigating Officer after perusing the statement, has recorded the fact that the prosecutrix has said that she is aged 20 years, and, that she had cohabitation with the applicant of her free will.
Learned AGA has opposed the prayer for bail and submits that it is by fraction of six months determined by the doctor that the prosecutrix is not a major.
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 age of the prosecutrix which is apparently 18 years or more with the usual allowance in case of medically determined age and unqualified statement of consent by the prosecutrix 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 Bablu Kumar alias Suraj Kumar in connection
with Case Crime No.134 of 2018, under Sections 376(2)(n) of I.P.C. and 3/4 POCSO Act, P.S. Chetganj, 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 :- 2.11.2018
R./
1 issue framed by the court
Whether the applicant is entitled to bail where the prosecutrix's medically determined age falls near the major stage with a statement of consent.
2 provisions across 2 enactments
Bablu Kumar Alias Suraj Kumar
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
