In a bail application regarding offences under IPC and POCSO, this court allowed bail relying on a medico-legal report estimating the prosecutrix as a major and her exculpatory statement of free will, without expressing opinion on merits.
Applicant released on bail on executing personal bond and furnishing two sureties subject to five conditions.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39999 of 2018
Applicant :- Rajesh Opposite Party :- State Of U.P. Counsel for Applicant :- Ram Ker Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
In compliance with the order dated 23.10.2018, the prosecutrix has been examined by a Medical Board constituted by the Chief Medical Officer, Gautam Buddh Nagar. The report of the medical board has been forwarded to this Court through the 1st Additional Sessions Judge, Gautam Buddh Nagar in a sealed cover. The sealed cover has been opened under the orders of this Court. The medical report is exhibited, and, made part of the record.
A perusal of the medical report submitted by the medical board comprising the Chief Medical Officer, Gautam Buddh Nagar and two other medical officers dated 26.10.2018 shows that based on an ossification test the prosecutrix has been opined to be about 18 years.
This is a bail application on behalf of the applicant Rajesh in connection with Case Crime No. 145 of 2018 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Greater Noida District Gautam Buddh Nagar.
Heard Sri Ram Ker Singh, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA appearing on behalf of the State.
The submission of learned counsel for the applicant is that going by the medico legal estimation of prosecutrix's age, she is clearly a major, and, therefore, the provisions of POCSO Act would not be attracted. Learned counsel for the applicant has invited the attention of this Court to the statement under Section 164 Cr.P.C. where the prosecutrix has spoken exculpatory saying that she is in love with the applicant; that on 10.05.2018 while she was at her uncle's ( Fufa ) home, where she stayed for four days, she left home and went along with the applicant, Rajesh, whom she loves; that she went to Delhi on 16.05.2018, and, lived in a rented accommodation, and, that she has said that she did so of her free will. It is also said that she lived with the applicant for two months establishing intimate relations, and, is living with the applicant as man and wife. It is further
said that the applicant did not ravish her or did anything against her wishes or forcibly. It is also said that the parties have entered into a court marriage. It is further said that two are living together.
Learned AGA has opposed the prayer for bail.
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 fact that the prosecutrix is prima facie a major, and, further that the statement under Section 164 Cr.P.C. is exculpatory, 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 Rajesh involved in Case Crime No. 145 of 2018 under Section 363, 366, 376 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Greater Noida, District Gautam Buddh Nagar 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 :- 5.12.2018
Deepak
2 issues framed by the court
Whether the applicant is entitled to bail in a case involving offences under Sections 363, 366, 376 IPC and POCSO.
Whether the medico-legal report indicating the prosecutrix is a major attracts provisions of poisoning of child.
3 provisions across 3 enactments
Rajesh
State Of U.P.
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
J.J. Munir
Parties & counsel
