Bail application allowed for applicant accused of kidnapping and rape. Court found applicant fit for bail based on prima facie evidence that prosecutrix is a minor and her statement denying force and claiming marriage was voluntary.
Applicant released on bail on executing personal bond with two sureties under specified conditions.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46462 of 2018
Applicant :- Shivam Gupta Opposite Party :- State Of U.P. Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applican0t Shivam Gupta in connection with Case Crime No. 246 of 2018 under Section 363, 366, 376, 504, 506 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Rajghat, District Gorakhpur.
Heard Sri P.C. Srivastava, learned counsel for the applicant and Sri Sudhir Kumar Pathak, learned AGA along with Sri Ashutosh Diljan, learned counsel 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, made by the Chief Medical Officer, Gorakhpur vide his certificate dated 22.09.2018 based on ossification test, she is aged about 17 years. Learned counsel for the applicant submits that giving the usual allowance of two years variation in the medico legal estimation of her age or even one, the prosecutrix would reckon to be a major. Learned counsel for the applicant has taken the Court through the statement under Section 164 Cr.P.C. where the prosecutrix has categorically said that she is in love with the applicant; that she has married him on 01.09.2018 in a temple; that she has adopted the Hindu faith that no force or coercion has been employed by the applicant; that she has married him according to her free will; that so far there has been no sexual relations between the applicant and the prosecutrix; that she does not want to stay with her father and mother; and, that the statement given by her is of her violation. The submission of learned counsel for the applicant is that looking to the aforesaid statement of the prosecutrix, no case is made out against the applicant.
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 from the medico legal estimation of age prima facie appears to be a major, and, the statement under Section 164 Cr.P.C. is exculpatory in
unqualified terms, 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 Shivam Gupta involved in Case Crime No. 246 of 2018 under Section 363, 366, 376, 504, 506 IPC and Section 3/4 Protection of Children from Sexual Offences Act, P.S. Rajghat, 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 :- 5.12.2018
Deepak
2 issues framed by the court
Whether the applicant is entitled to bail given the prima facie age of the prosecutrix as a major and her exculpatory statement.
Whether the nature of allegations and gravity of offence preclude bail under the applicable sections.
7 provisions across 3 enactments
Shivam Gupta
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
