Court allowed bail to Ganesh accused under IPC 363, 366, 376-D and POCSO. The applicant argued discrepancies between initial prosecution documents and the belated statement under section 164 Cr.P.C. introducing his name, rendering the case shaky.
Release on bail upon personal bond and two sureties subject to conditions against tampering with evidence or witnesses.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44020 of 2018
Applicant :- Ganesh Opposite Party :- State Of U.P. Counsel for Applicant :- Bipin Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of Ganesh in connection with Case Crime No.176 of 2017, under Sections 363, 366, 376-D I.P.C. and Section 3/4 Protection of Children From sexual Offence Act, 2012, P.S. Belipar, District Gorakhpur.
Heard Sri B.K.Tripathi, learned counsel for the applicant and Sri M.P.S.Gaur, learned AGA along with Sri Abhinav Tripathi, learned counsel on behalf of the State.
The submission of learned counsel for the applicant is that going by the medico legal estimation of age of the prosecutrix, she has been opined on the basis of an ossification test to be aged about 17 years, which giving the usual allowance of two years, even one, would reckon the prosecutrix to be a major. He submits that the provisions of POCSO Act would not be attracted. It is argued that the applicant is not at all nominated in the first information report or anywhere in the recovery memo where the prosecutrix has been recovered from the custody of the co-accused, Amarjeet or in the statement of the prosecutrix recorded under Section 161 Cr.P.C. that speaks about an affair between Amarjeet, and, the prosecutrix, and, the prosecutrix leaving home of her free will with Amarjeet, but the name of the applicant has been introduced for the first time through the statement under Section 164 Cr.P.C. that speaks inculpatory of the applicant by the prosecutrix, that was no where mentioned earlier. The submission of learned counsel for the applicant is that the prosecution, so far as the applicant is concerned, on the basis of a new case, set up for the first time in the statement under Section 164 Cr.P.C. that has no contextual reference to the basic prosecution version, makes it extremely shaky and doubtful.
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 punishment, the evidence appearing in the case, in particular, the fact that the prosecution case, as set out in the first information report, in the recovery memo and the statement under Section 161 Cr.P.C. is
at gross variance with the one in the statement under Section 164 Cr.P.C. through which, for the first time, the name of the applicant has been introduced, 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 Ganesh in connection with Case Crime No.176 of 2017, under Sections 363, 366, 376-D I.P.C. and Section 3/4 Protection of Children From sexual Offence Act, 2012, P.S. Belipar, District Gorakhpur 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 :- 19.11.2018
R./
2 issues framed by the court
Whether bail should be granted to the applicant accused of offences under sections 363, 366, 376-D IPC and POCSO Act.
Whether the delay in introduction of the applicant's name in the prosecution case warrants consideration for bail.
2 provisions across 2 enactments
Ganesh
State Of U.P.
Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
