Balchand @ Bhagjan vs State Of U.P. & Anr

Perusal of record would reveal that notice on opposite party no.2 (informant) was served as per the report of Chief Judicial Magistrate, Barabanki dated 19.11.2020 and office report dated 23.11.2020. However, no one has appeared on behalf of opposite party no.2.

Heard learned counsel for the accused/applicant through video conferencing as well as learned A.G.A. for the State and perused the record.

This bail application has been moved by the accused/applicant- Balchand @ Bhagjan for grant of bail, in Case Crime No. 289/2019, under Sections 363, 366, 376 IPC & 7/8 POCSO Act, relating to Police Station Zaidpur, District Barabanki, during trial.

Learned counsel for the accused-applicant while pressing the bail application submits that the accused-applicant has falsely been implicated in the instant case and he has not committed any offence as claimed by the prosecution.

It is further submitted that the case of the prosecution as stated in the FIR is that the age of the prosecutrix is about 16 years and she was enticed away by the applicant and had also taken with her Rs. 35,000/-. After ten days of lodging of the FIR the prosecutrix was stated to have been recovered along with the applicant and in her statement recorded under Section 161 Cr.P.C. she had acknowledged that she was in relationship with the applicant and had accompanied him and she was subjected to rape by the applicant. It is also the case of the prosecution that in the statement of prosecutrix recorded under Section 164 of Cr.P.C. she has acknowledged to have accompanied the applicant on her own and also that she remained with the applicant for 9 days and was also subjected to rape.

Highlighting the above factual matrix, it is vehemently submitted by learned counsel for the applicant that if the FIR and the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. are read together it will emerge that the prosecutrix was in a relationship with the applicant and she on her own volition had accompanied the applicant and remained with him with her free wish and will for ten days and thereafter when the applicant was escorting her to her house he was arrested and the prosecutrix was handed over in the custody of her father.

It is also submitted that though the certificate age of the prosecutrix is about 15 1/2 years but in the FIR her age has been shown as 16 years and she in her statements recorded under Sections 161 and 164 Cr.P.C. had stated her age to be of 18 years and her bone age has also been determined as more than 18 years and keeping in view her admission with regard to her age the age of the prosecutrix as contained in Class-V School Leaving Certificate could not be believed.

It is also submitted that the applicant is blind, which is apparent from the statement of the prosecutrix under Section 161 of Cr.P.C. as well as from the recovery memo and therefore it is highly improbable that he could entice away and lure the prosecutrix and actually it was the prosecutrix who had left her house on her own will and wish and thereafter under the pressure of her family members she had levelled baseless accusation against the applicant.

It is further submitted that the applicant is in jail in this matter since 16.12.2018 and not having any criminal history. Charge sheet in the matter has already been submitted.

Learned A.G.A., however, opposes the prayer for bail of the applicant on the ground that the application is accused of heinous offence and therefore he is not entitled to be released on bail.

Having heard learned counsel for the parties and having perused the record, it is evident that the applicant is a blind person as the same has been recorded in the recovery memo as well as stated in the statement of the prosecutrix recorded under Section 161 Cr.P.C. In the FIR as well as in the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C., it is evident that she on her own volition and with free wish and will had accompanied the applicant. However, thereafter accusation of committing rape by the applicant had been levelled. The bone age of the prosecutrix has been determined as more than 18 years and she in her statement recorded under Sections 161 and 164 Cr.P.C. also has stated her age to be of 18 years. It has been vehemently submitted by learned counsel for the applicant that in the back ground of the admission of the prosecutrix in her statement recorded under Sections 161 and 164 of Cr.P.C. as well as keeping in view the certificate issued by the Chief Medical Officer, Baraanki the age of prosecutrix as has been shown in her Class-V Educational Certificate could not be believed and at least at the stage of bail, the applicant is entitled to be given benefit of doubt with regard to the age of the prosecutrix. The applicant is in jail in this matter since 16.12.2018 and no criminal history of the applicant has been shown.

Having regard to the overall facts and circumstances of the case and keeping in view the submissions made by learned counsel for the applicant I find substance only for the purpose of releasing the applicant on bail. The bail application of the applicant is, thus, allowed.

Let the applicant- Balchand @ Bhagjan involved in the aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not attempt to contact either prosecutrix or any of her relative or prosecution witnesses.

(ii) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

(iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(v) The applicant shall remain present before the trial court on each and every date unless his personal appearance is exempted by the trial court.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

The observations made herein-above are only for the purpose of disposal of bail application and the same shall not in any case be treated as opinion of the court and will not affect the fate of trial.