Single Judge allowed bail application for applicant accused under IPC and POCSO sections. Court found prima facie no major from medical estimate and applicant's statement was exculpatory.
Released on bail with personal bond and two sureties each.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45345 of 2018
Applicant :- Rajesh Gautam Opposite Party :- State Of U.P. Counsel for Applicant :- Ali Hasan,Istiyaq Ali Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant, Rajesh Gautam in connection with Case Crime No. 53 of 2018, under Sections 363,365,366,376 IPC and Section 5/6 POCSO Act, P.S. Sureri, District Jaunpur.
Heard Sri Ali Hasan, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA appearing for the State.
The submission of the learned counsel for the applicant is that the age of the prosecutrix about which there is no other record, according to the medico legal estimation made on the basis of an ossification test, has been certified by the Chief Medical Officer, Jaunpur vide his report dated 24.8.2018 to be about 16 years. It is submitted that giving the usual allowance of two years in the medically estimated age to the benefit of the applicant, the prosecutrix would reckon to be 18 years and, therefore, a major. Learned counsel for the applicant has invited the attention of the Court through the statement under Section 164 Cr.P.C. recorded before the Magistrate on 25.08.2018, wherein the prosecutrix has spoken exculpatory in unqualified terms. She has stated that she has gone alongwith the applicant of her free will from her native place to Bhadohi, and, therefrom to Surat in Gujarat where they have married. It is said that two are living together as man and wife.
The submission of the learned counsel for the applicant is that the prosecutrix is living with the applicant's father and mother,
while he is in jail, as his lawfully wedded wife. It is further submitted that the applicant is a respectable man with no criminal history and is in jail since 28.8.2018.
Learned A.G.A. has opposed the prayer for bail.
Considering the facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix going by the medico legal estimation of her age with the usual variation prima facie appears to be a major, and, 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.
The bail application, accordingly, stands allowed .
Let the applicant Rajesh Gautam involved in Case Crime No. 53 of 2018, under Sections 363,365,366,376 IPC and Section 5/6 POCSO Act, P.S. Sureri, District Jaunpur 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 :- 28.11.2018 BKM/-
3 issues framed by the court
Whether the applicant is eligible for bail given the prima facie age of the prosecutrix as a major based on medical estimation.
Whether exculpatory statement under Section 164 Cr.P.C. indicates a fit case for bail.
Whether the conditions of bond and surety should be relaxed or imposed.
3 provisions across 3 enactments
Rajesh Gautam
Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Munir
