Criminal Miscellaneous Bail Application regarding allegations of rape and POCSO offences. The court observed discrepancies regarding the prosecutrix's age and forensic evidence. Without commenting on merits, the court held it a fit case for bail.
The applicant was released on bail on furnishing a personal bond and two sureties.
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Court No. - 77
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20543 of 2019
Applicant :- Pradeep Harizan Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Rajiv Chowdhury Counsel for Opposite Party :- G.A.
Hon'ble Umesh Chandra Tripathi,J.
Shri Rajiv Chowdhury, learned counsel for the applicant, has filed supplementary affidavit in the Court today, the same is taken on record.
Heard learned counsel for the parties and perused the record.
By way of instant bail application, prayer has been made to enlarge the applicant on bail in Case Crime No. 75 of 2019, under Section 376 of I.P.C. and Section 3/4 of POCSO Act, Police Station - Cholapur, District - Varanasi.
As per prosecution version, the applicant was regularly talking to the prosecutrix, aged about 15 years, on mobile. In the night intervening 13/14.03.2019 at about 02.00 A.M., the applicant called the prosecutrix on telephone and took her away. He outraged the modesty of the prosecutrix. When informant Sanju Devi reached on the spot, the applicant fled away.
Learned counsel for the applicant contended that the prosecutrix is major. The F.I.R. was lodged under Section 354 of I.P.C. and Section 7/8 of POCSO Act, in consultation with the prosecutrix. No allegation of rape has been made in the F.I.R. Later on, after due deliberation and legal advice, the prosecutrix made false allegation of rape against the applicant. Medical report does not support the prosecution version of rape on the prosecutrix. In the vaginal smear report, no spermotozoa, either alive or dead, was found. The applicant is languishing in jail since 03.04.2019 having no criminal antecedents.
Per contra, learned A.G.A. opposed the prayer for bail, however, he admitted this fact that no school certificate in support of age of the prosecutrix is available in this case. As per medical report, age of the prosecutrix is in between 16½ - 17½ years. He further admitted that as per medical report, no injury, either internal or external, on the person of the prosecutrix was seen. Moreover, no spermotozoa, either alive or dead, was found in the vaginal smear report.
First information report was lodged under Section 354 of I.P.C. and Section 7/8 of POCSO Act, in consultation with the prosecutrix.
Without commenting on the merits of the case, considering the facts and circumstances of the case, I find it a fit case for enlarging the applicant on bail.
Let the applicant - Pradeep Harizan be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the court concerned.
Application stands allowed .
Order Date :- 5.7.2019 I. Batabyal
2 issues framed by the court
Whether the applicant is eligible for enlargement on bail in a FIR registered under Section 373 IPC and Sections 3/4 of POCSO Act given the medical report findings.
Whether the absence of a school certificate establishing the age of the prosecutrix and lack of forensic evidence warrant grant of bail.
4 provisions across 2 enactments
Pradeep Harizan
State Of U.P.
Umesh Chandra Tripathi
As recorded by the court registry
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