Court granted bail to applicant in sexual assault case involving IPC and POCSO charges. Bail allowed due to prosecutrix speaking exculpatory in trial despite gravity of charges and severity of punishment.
Applicant released on bail on personal bond with two sureties under specified conditions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45408 of 2017
Applicant :- Deepu @ Anuj Kumar Opposite Party :- State Of U.P. Counsel for Applicant :- Ram Mohan, Adesh Pal Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of applicant-Deepu alias Anuj Kumar, in Case Crime No. 352 of 2017, under Sections 376, 511, 506, IPC and section 3/4 Protection of Children from Sexual Offence Act, 2012, Police Station Bhogaon, District Mainpuri.
Heard Sri Adesh Pal Singh, learned counsel for the applicant and Sri Akhilesh Mishra, learned AGA, appearing on behalf of the State.
The submission of the learned counsel for the applicant is that he has been falsely implicated in the present crime. It is further submitted that ongoing by the medico legal estimation, the prosecutrix has been opined by the Chief Medical Officer, Mainpuri, aged about 16 years, vide certificate dated 10.7.2018, based on the ossification test. It is submitted that giving the usual allowance for variation in age to the benefits of the applicant, the prosecutrix would reckon to be a major. It is submitted that the prosecutrix being a major, the provision of POCSO Act would not be attracted. It is further argued that the statement of the prosecutrix under section 161 Cr.P.C. are inconsistent, where in the earlier statement to the police, there is no allegation of rape against the co-accused Shailu, but in the statement under section 164 Cr.P.C. there is an allegation of attempt to rape against both. It is submitted that looking to the inconsistent version of the prosecutrix, the accused-applicant ought not to have been charge sheeted. The Court has looked into the deposition of the prosecutrix, in the ongoing Special Session Trial No. 100 of 2017 a certified copy of which was produced in the connected Criminal Misc. Bail Application No. 1592 of 2018. Learned counsel for the applicant has invited the attention of the Court to the said deposition of the prosecutrix, in the witness box, on 24.8.2018, in Special Session Trial No. 100 of 2017, where deposing in the dock, the prosecutrix has said that there was a verbal altercation between the parties over the issue of a buffalo splattering some mud over the present applicant and the co-accused Shailu, who scolded in her consequence. It was on that account that the natives of the village gathered and ill-advised the applicant to lodge the present FIR, which has led to this prosecution. It is further argued that the applicant is in jail since 18.7.2017.
Learned AGA has opposed the prayer for bail but does dispute the fact that the prosecutrix has spoken exculpatory in the ongoing trial.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegation, the severity of punishment, the evidence appearing in the case, in particular, the fact that the prosecutrix has spoken exculpatory in the ongoing trial, 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, Deepu alias Anuj Kumar, in Case Crime No. 352 of 2017, under Sections 376, 511, 506, IPC and section 3/4 Protection of Children from Sexual Offence Act, 2012, Police Station Bhogaon, District Mainpuri 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 :- 20.11.2018 Puspendra
3 issues framed by the court
Whether the applicant entitled to bail in a case involving Sections 376 IPC and POCSO given prosecutrix's exculpatory deposition in trial and inconsistencies in her statements.
Whether medical opining of prosecutrix's age as major under POCSO Act negates its applicability for bail considerations.
Whether the facts and circumstances constitute a fit case for granting bail.
4 provisions across 2 enactments
Deepu alias Anuj Kumar
State Of U.P.
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
