Criminal bail application allowed. Court granted bail to applicant accused of abducting and raping a major female, noting inconsistency in prosecutrix statements and evidence of marriage between parties.
Applicant released on bail on executing personal bond and furnishing two sureties with conditions to not tamper with evidence or witnesses.
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Court No. - 53
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49106 of 2018
Applicant :- Aditya Kumar @ Minchut Sonkar Opposite Party :- State Of U.P. Counsel for Applicant :- Lal Mani Singh,Raghuvir Sharan Singh
Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of the applicant Aditya Kumar @ Minchut Sonkar, in Case Crime No.710 of 2018, under Sections 366, 376, 406, 504, 506 IPC, Police Station, Ghatampur, District Kanpur Nagar.
Heard Sri Lal Mani Singh, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned AGA appearing on behalf of the State.
The submission of the learned counsel for the applicant is that the prosecutrix is admittedly a major. Her date of birth acknowledged to all parties, going by her school record, being 5.6.2000. It is submitted that in the FIR lodged by the brother, the allegation is against the applicant, and five others, of enticing away his sister alleging commission of offences under Sections 363, 366, 504, 352 IPC. There is no allegation of rape there. It is submitted by learned counsel for the applicant that in the statement of the prosecutrix recorded under Section 161 Cr.P.C., she has said that she had read upto class VII in the Islamia Inter College, Ghatampur; that her date of birth she does not remember, but her age is 19 years; that on 10.08.2018, the applicant came over to her house and took her along; that he housed her in a room at Kanpur twisted her arm and also attempted to throttle her, but did not ravish her. It is said that instead he took away money, a chain (presumably a gold chain)
two rings (presumably finger rings), apart from Rs.2,46,000/0 in cash. It is also said that she has not been married, nor the applicant did anything to her by force, and that is her statement. It is submitted by learned counsel for the applicant that in the said statement of the prosecutrix, there is not a word to suggest an allegation of rape against the applicant. It is pointed out that in the statement under Section 164 Cr.P.C., generically changing the case, the prosecutrix has come up with an allegation that on 10.08.2018 at about 5:30 in the morning, the applicant along with co-accused Guddu @ Ajit came over in a four wheeler armed with pistols, she was asleep at that time. Her brother and father left for the shop, and her mother had gone over to fetch milk. The applicant is said to have gained entry to her house and told her that her brother had met with an accident. Upon the prosecutrix asking the applicant about the place of incident, the two co-accused abused her, and forced her into a car, stuffing her mouth with cloth rags. It is said that she somehow lay hands on the applicant's mobile, and informed her mother. It is said in the statement under Section 164 Cr.P.C., in the passing, that apart from relieving the applicant of her Rs.2,46,000/-, her chain and rings, the two would ravish her after going inebriated. It is submitted by Sri L.M. Singh, learned counsel for the applicant that the allegation of rape introduced through the statement under Section 164 Cr.P.C., is a generic change and improvement to the prosecutrix's stand under Section 161 Cr.P.C., that is categorical to the effect that the applicant never ravished her. It is most emphatically pointed out by learned counsel for the applicant that the prosecutrix, in her statement made to the doctor during medical examination, recorded in confidence, it is said that on 10.08.2018, she eloped with the applicant from home, and lived with him for about a month, till she was recovered on 17.09.2018 from the place
where she set up home with the applicant. It is, in addition, pointed out that the applicant and the prosecutrix had married, after the prosecutrix converting to the Hindu faith, as would appear from the certificate of conversion dated 23.7.2018 issued by the Arya Samaj, Benazhabar, Kanpur Nagar, and, the certificate of marriage, also of the same date, issued by the same Arya Samaj Mandir, a copy of each of which is annexed as Annexure-2 to the affidavit in support of the bail application. Learned counsel for the applicant submits that the statement made to the doctor in confidence clearly speaks of a case of marriage between the applicant and the prosecutrix, and the two living together, post marriage. It is also pointed out that the certificate of conversion and marriage, has deliberately not been included by the police, in the case diary during investigation.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that there is no allegation of rape by the prosecutrix in her statement under Section 161 Cr.P.C., to the police, the fact that she has acknowledged marrying the applicant in her statement to the doctor in confidence during her medical examination, the fact that there is on record evidence to show that she converted faith and married the applicant, the fact that the prosecutrix is admittedly a major and of the competent age to marry under law, 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 Aditya Kumar @ Minchut Sonkar, in Case Crime No.710 of 2018, under Sections 366, 376, 406, 504, 506
IPC, Police Station, Ghatampur, District Kanpur Nagarbe 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 :- 20.12.2018 NSC
1 issue framed by the court
Whether the applicant is entitled to bail in a case involving offences under IPC 366 and 376 where the prosecutrix is a major and has acknowledged marriage to the applicant.
1 provisions across 1 enactments
Aditya Kumar @ Minchut Sonkar
J.J. Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
