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CR.MA/9809/2011 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9809 of 2011
=========================================================
RAMNIKBHAI
JESINGBHAI MAKWANA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
MP SHAH for
Applicant(s) : 1,MS. KRUTI M SHAH for Applicant(s) : 1,
MR DESAI
ADDL. PUBLIC PROSECUTOR for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 01/08/2011
ORAL
ORDER
1.
Heard Ms.Shah, learned advocate for the applicant and Mr.Desai,
learned APP for the respondent-State.
2. This
application seeking regular bail under Section 439 of the Code of
Criminal Procedure, 1973 has been preferred by applicant in
connection with the offence registered with Botad
Police
Station, bearing
C.R.
No.I-31/2011 for
the offence punishable under Sections 363, 366, 376 and 114 of the
Indian Penal Code.
3. Ms.Shah,
leaned advocate for the applicant has submitted that the applicant is
young boy of 18 years age and that the applicant boy and the
prosecutrix were in relationship since long time and the incident
occurred with consent of the prosecutrix. She also submitted that it
was only in the further statement subsequently given by the
prosecutrix on 1.3.2011 that the allegation about the alleged offence
under Section 376 came to be made by the prosecutrix otherwise in
the, complaint lodged on 24.2.2011, which was lodged by the
prosecutrix herself, any allegation about offence under Section 376
was not made. Thus, it clearly comes out that the subsequent
allegations have been made by the prosecutrix under force from her
family members. She has submitted that now the chargesheet has been
filed. As regards the age of the prosecutrix learned advocate for the
applicant heavily relied on birth certificate which reflects the date
of birth of the prosecutrix as of 10.9.1994. She also relied on the
details mentioned in the FIR where also the age of the prosecutrix is
mentioned as of 16 years and on the medical report wherein the age of
the prosecutrix is shown to be of about 17 years. On this count, she
also relied on the statement given by the father of the prosecutrix
on 1.9.2010 wherein he has stated that correct name of the
prosecutrix is “Bhartiben” as shown in the certificate
and that is what is reflected in the birth certificate is his
daughter’s correct date of birth. With regard to the date of birth
mentioned in the School Leaving Certificate, the father of the
prosecutrix has stated, in his statement that he had not carried the
birth certificate with him while getting his daughter admitted and at
that time he had mentioned her birth date without looking at the
record i.e. birth certificate and by relying on his memory. He also
appears to have stated in his statement that the correct birth date
of the prosecutrix is 10.9.1994. On the strength of such statement
and the birth certificate learned advocate for the applicant
submitted that on the date of alleged incident the prosecutrix had
crossed the age of 16 years and that therefore her consent deserves
to be taken into account atleast for considering the request for bail
and the applicant may be released on regular bail.
4. The
application is opposed by Mr.Desai, learned APP, who has submitted
that serious offence under Section 376 is alleged against the
applicant and that therefore the application may not be granted. He
however, admitted that it
was only in the subsequent statement dated 1.3.2011 that the
prosecutrix mentioned about the offence under Section 376 however in
the FIR no such allegation is made. He also admitted that in his
statement made on 1.9.2010 the father of the prosecutrix has stated
that at the relevant time the age of the prosecutrix was 16 years and
her birth date is 10.9.1994.
5. Having
heard the learned counsel for both the sides and considering the
facts and circumstances of the case as well as the documents and
other material produced on record of this case, the gravity of the
offence, the quantum of punishment, the allegations against the
applicant, the manner in which the applicant is allegedly involved in
the case as per the allegation of the prosecution, and also upon
considering the medical certificate which shows age of the
prosecutrix as about 17 years and also gives out that there were no
signs of injury to the prosecutrix and considering the fact that the
applicant is about 18 years old and now chargesheet has already been
filed and also having regard to the fact that in the complaint lodged
on 24.2.2011 any allegation about offence under Section 376 was not
made and it is only in subsequent statement that the prosecutrix has
made such allegation and considering the submission of learned
advocate for the applicant that the applicant had actually showed his
readiness to marry the prosecutrix, however the parents of the
prosecutrix are not agreeable for their marriage and upon having read
the subsequent statement given by the prosecutrix on 1.3.2011, I am
of the view that the applicant deserves to be released on bail, I am
inclined to allow this application and release the applicant.
6.
Hence,
this application is allowed. It is directed that the present
applicant in connection with CR
No.I-31/2011 registered
with Botad
Police Station,
be released on bail, in respect of the offences alleged against him
in this application, on his executing and furnishing a bond of
Rs.15,000/-
(Rupees: Fifteen Thousand Only) with two solvent sureties of like
amount, by the concerned Police Officer, and on condition that he
shall:-
(a)
not take undue advantage of or abuse the liberty.
(b)
not act in manner injurious to the interest of the prosecution.
(c)
maintain law and order.
(d)
not leave the State of Gujarat without prior permission of the
Sessions Court concerned.
(e)
furnish the address of his residence at the time of execution of bond
and shall not change the residence without prior permission of the
Sessions Court/this Court.
(f)
surrender his passport, if any, to the lower court within 4 days from
the date of this order.
(g)
mark his presence at the Botad
Police Station initially
on 8.8.2011 and
thereafter on every Monday,
between
11.00 a.m. to
3.00 p.m.
(h)
not enter the revenue limit of village Nagalpar and Taluka Botad till
the trial is over, and for 6 months shall not enter revenue limits of
Bhavnagar District without prior permission of the Sessions Court,
but for marking his presence and attending the Court in connection
with this case the applicant will be free to enter the limits for a
period to the extent necessary and will leave the limits of
Bhavnagar District immediately after the case is adjourned.
7. The
authorities will release the applicant only if he is not required in
any other offence for the time being.
8. If
breach of any of the above conditions is committed the Sessions Judge
concerned will be free to issue warrant or take any appropriate
action in the matter.
9. Bail-bond
before the lower Court having jurisdiction to try the case.
10. At
the trial, the trial Court shall not be influenced by the
observations, which are purely prima facie, tentative and preliminary
nature and have been made only for the purpose of examining prayer
for bail pending the trial. The Court shall arrive at its own
conclusion independently on the basis of the evidence and other
aspects of the case.
11. Rule
is made absolute to the aforesaid extent. Direct service is
permitted.
(K.M.
Thaker, J.)
Suresh*
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