Allowed

Vivek Babu v. State of U.P.

Allahabad HC12 Nov 2018BAIL/39236/2018

Case brief

AI extract

What is this about?

This court allowed a bail application in a POCSO and rape case. The court noted a discrepancy between the victim’s medical report (suggesting no ravishment) and her Section 164 Cr.P.C. statement alleging rape, finding the latter a changed stand. It held this was a fit case for bail.

What did the court decide?

Bail granted on executing a personal bond and furnishing two sureties, subject to conditions not to tamper with evidence, threaten witnesses, or commit similar offences.

Vivek Babu Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2018)

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Court No. - 53

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39236 of 2018

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Applicant :- Vivek Babu Opposite Party :- State Of U.P. Counsel for Applicant :- R.K. Shahi Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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In compliance with the order dated 10.10.2018 an affidavit of compliance has been filed on behalf of the State enclosing with it the statement of Dr. Alpana Rani Gupta recorded by the I.O. Dr. Alpana Rani Gupta is the doctor who medically examined the prosecutrix and recorded her statement relating to the incident in the specified column. The doctor in her statement to the police under Section 161 Cr.P.C. has said that she has medically examined the prosecutrix to the extent that she was permitted and recorded other facts in her medical report by which she stands. Thus, the statement of the prosecutrix regarding the incident recorded by the doctor has been verified by the prosecution.

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Heard Sri R.K. Shahi, learned counsel for the applicant and Sri Nitin Kesarwani, learned AGA along with Sri Mayank Awasthi, appearing on behalf of State.

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This is a bail application on behalf of the applicant Vivek Bubu in connection with Case Crime No.937 of 2017, under Sections 363, 366, 376, 406, 120-B IPC and Section 3/4 POCSO Act, P.S.Kotwali, District Deoria.

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The submission of the learned counsel for the applicant is that the prosecutrix going by her medico legal estimation of age done by a board of doctors in the office of the C.M.O. Deoria has been found to be aged about 19 years as would be apparent from a perusal of the medico legal certificate dated 3.02.2018 issued by the C.M.O. Deoria and also signed by the medical board. He submits that the applicant is apparently a major and, therefore, the provisions of the POCSO Act would not be attracted. He has invited the attention of the Court to the statement of the prosecutrix recorded by the doctor during her medico legal examination on 1.02.2018 wherein the column relating to the incident given by the victim, it has been stated clearly that no-one ravished her (Mere Sath Koi Galat Kam Nahi Hua Hai) . Learned counsel for the applicant submits that the subsequent statement under Section 164 Cr.P.C. where there is an allegation of rape brought against the applicant is the result of improvement and afterthought which cannot be relied

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upon to keep the applicant in detention pending trial.

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Learned AGA has opposed the prayer for bail and has relied upon the statement under Section 164 Cr.P.C. to submit that there is a categorical allegation of rape. However, he does not deny the fact that the prosecutrix in her statement to the doctor has not come up with such an allegation.

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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 statement made to the doctor which is clearly exculpatory and the changed stands in the statement under Section 164 Cr.P.C. that is inclupatory, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.

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Accordingly, the bail application stands allowed.

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Let the applicant Vivek Babu involved in 937 of 2017, under Sections 363, 366, 376, 406, 120-B IPC, and Section 3/4 POCSO Act, P.S.Kotwali, District Deoria 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:

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i) The applicant shall not tamper with the prosecution evidence.

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ii) The applicant shall not threaten or harass the prosecution witnesses.

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iii) The applicant shall appear on the date fixed by the trial court.

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iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.

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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.

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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.

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Order Date :- 12.11.2018 Neeraj

Vivek Babu v. State of U.P.

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Vivek Babu v. State of U.P.

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