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2015 DIGILAW 1446 (ALL)

Bhagwan Das Lodhi @ Seth v. State of U. P.

2015-05-29

RAMESH SINHA

body2015
JUDGMENT Ramesh Sinha, J. Heard Sri Pradeep Chandra, learned counsel for the applicant, Sri R.C. Yadav, learned A.G.A. appearing for the State and perused the record. 2. It is submitted by learned counsel for the applicant that as per supplementary report, the prosecutrix is 16 years. The law is settled that the margin of error in ascertaining the age by radiological examination is two years on either side and hence the possibility of the prosecutrix being major cannot be ruled out. From a perusal of her statement under Section 164 Cr.P.C. she appears to be a consenting party. She voluntarily eloped with the applicant without informing her parents as she was annoyed with them. She remained with the applicant at Delhi for about two months. It is not a case of taking away or enticing away the prosecutrix. Although, she has made an allegation of rape against the applicant but the same has not been corroborated by any medical evidence and surrounding circumstances which totally belies the prosecution case as well as statement under Section 164 Cr.P.C. Her medical report does not show any mark of injury, violence or sexual assault. Learned counsel for the applicant in support of his contention has placed reliance on the judgment passed in the case of S. Varadarajan Vs. State of Madras (1965 AIR 942, 1965 SCR (1) 243. The applicant is in jail since 19.12.2014. 3. Learned A.G.A. opposed the prayer for bail. Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case. 4. Let the applicant-Bhagwan Das Lodhi @ Seth involved in Case Crime No. 100 of 2014, under Sections 363, 366, 376 I.P.C. and 3/4 Protection of Children from Sexual Offences Act, 2012, Police Station-Dannahar, District Mainpuri be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions. (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.