Allowed

Chhotu @ Om Narain v. State of U.P.

Allahabad HC7 Jan 2019BAIL/246/2019

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C. for an alleged rape offence under IPC 376 and POCSO Act, the court granted bail, noting the prosecutrix's inconsistent and exculpatory trial testimony, without expressing an opinion on the merits of the allegations. Standard bail conditions were imposed.

What did the court decide?

Application allowed; applicant released on personal bond and two sureties with conditions against tampering, threatening witnesses, and reoffending.

Chhotu @ Om Narain Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2019)

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 246 of 2019

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Applicant :- Chhotu @ Om Narain Opposite Party :- State Of U.P. Counsel for Applicant :- Ramesh Prasad Counsel for Opposite Party :- G.A.

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Hon'ble J.J. Munir,J.

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This is a bail application on behalf of the applicant Chhotu @ Om Narain, in Case Crime No. 66 of 2017 under Section 376 IPC, and Section 4 POCSO Act, Police Station Jaspura, District Banda.

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Heard Sri Ramesh Prasad, learned counsel for the applicant, and Sri Akhilesh Kumar Mishra, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.

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The submission of learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age dated 5.6.2017, made by the Medical Officer, District Women Hospital, Banda, on the basis of an ossification test, she has been opined to be about 16 years. It is submitted that making allowance for the usual variation of two years, the prosecutrix would reckon to be a major. It is further submitted that the provisions of the POCSO Act, therefore, not all be attracted. It is pointed out that though the prosecutrix has spoken inculpatory during investigation, but in the ongoing trial, deposing in the witness box in Special Case No.39 of 2017, State Vs. Chhotu @ Om Narain, the prosecutrix has specifically said that on 7.5.2017, at about 3:00 O' clock, her mother had sent her to the ' Khalihan'. She did not meet the applicant Chhotu @ Om Narain, there nor did he muffle her voice or

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ravish her. She has further said that she never fell unconscious. She has further stated that she never told her mother that she was ravished by the applicant Chhotu. She was declared hostile and cross examined by the prosecution, but she has withstood the same. On being confronted with her statement under Section 164 Cr.P.C., though she acknowledged it to one that had been recorded by the Magistrate in her presence, but said that the same was made under the pressure of her father and the police. She never made the said statement, of her free will. The statement that she had made before the doctor also, was one under the pressure of her mother and father. So far as the statement under Section 161 Cr.P.C., is concerned, she has categorically said that she never made it to the police and also said that the police had made her sign some blank papers. The submission of learned counsel for the applicant is that looking to the dock evidence of the prosecutrix, which is clearly exculpatory, there is no justification to detain the applicant, pending trial any further.

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Learned AGA has opposed the prayer for bail and submits that the worth of testimony in the trial comes within the province of the trial Court and it is not for this Court to look into, for the purposes of determination of the present bail application under Section 439 Cr.P.C.

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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 the prosecutrix has spoken exculpatory in her testimony recorded during the ongoing trial in the witness box, the fact that the applicant is in jail since 9.5.2017, pending trial, the fact that there is no early end to the trial in sight, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.

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The bail application, accordingly, stands allowed .

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Let the applicant Chhotu @ Om Narain, in Case Crime No. 66 of 2017 under Section 376 IPC, and Section 4 POCSO Act, Police Station Jaspura, District Banda 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:

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i) The applicant shall not tamper with the prosecution evidence.

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ii) The applicant shall not threaten or harass the prosecution witnesses.

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iii) The applicant shall appear on the date fixed by the trial court.

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iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission.

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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.

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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.

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Order Date :- 7.1.2019

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NSC

Chhotu @ Om Narain v. State of U.P.

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Chhotu @ Om Narain v. State of U.P.

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