In cases involving POCSO Act offences, bail may be granted if there are changed circumstances, such as inconsistencies in the prosecutrix's testimony or FSL reports indicating the absence of crucial evidence, which raise doubts about the prosecution's case.

Headnote:
BAIL - POCSO ACT - SECTION 439 CRPC - REPEAT BAIL APPLICATION - CHANGED CIRCUMSTANCES - PROSECUTRIX AND HER FATHER'S COURT TESTIMONY - FSL REPORT - ABSENCE OF SPERM - NO DNA EXAMINATION - BAIL GRANTED
Fact of the Case:

The applicant, accused of offences under Sections 363, 366, 376(2)(n), 376(3) of IPC and Section 5(L)/6 of POCSO Act, 2012, filed a second bail application under Section 439 of the Code of Criminal Procedure. The applicant claimed innocence and argued that the prosecutrix did not support the prosecution story during her court testimony, and that the FSL report showed the absence of sperm, indicating no DNA examination was undertaken.
Finding of the Court:

The court noted that the prosecutrix and her father's court testimony, along with the FSL report, constituted changed circumstances from the time of the rejection of the first bail application. The court found it fit to release the applicant on bail.
Issues: Whether the applicant should be granted bail considering the changed circumstances, including the prosecutrix's and her father's court testimony and the FSL report.
Ratio Decidendi: The court held that the changed circumstances, particularly the prosecutrix's and her father's court testimony and the FSL report showing the absence of sperm and no DNA examination, warranted the grant of bail to the applicant.
Final Decision: The court allowed the repeat bail application and directed the release of the applicant on bail upon furnishing a personal bond and complying with the provisions of Section 437(3) of Cr.P.C.

ORDER

This is second bail application filed by the applicant under Section 439 of the Code of Criminal Procedure for grant of regular bail relating to FIR/Crime No.131/2023 dated 05.04.2023 registered at Police Station Khalwa, District Khandwa (M.P.) for the offences under Sections 363, 366, 376(2)(n) and 376(3) of IPC and Section 5(L)/6 of POCSO Act, 2012.

2. Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the case. Applicant is in custody since 09.04.2023 and the trial will take considerable time to conclude. He also submits that the applicant is permanent residents of the district Khandwa and there is no likelihood of his absconding or tampering with prosecution evidence.

He also submits that the applicant is ready to furnish adequate surety and shall abide by all the directions and conditions which may be imposed by this Court.

On these grounds, it is prayed that the applicant may be released on bail.

3. Learned counsel appearing for the State opposed the bail application and prayed for its rejection.

4. Heard learned counsel for the parties and perused the case-diary.

5. This repeat bail application has been on the ground that prosecutrix did not support the prosecution story during her Court testimony but that fact was considered even at the time of rejection of first bail application by this Court vide order dated 18.08.2023 in M.Cr.C.No.26691/2023. The changed circumstances are that now the statements of father of prosecutrix have also been recorded and three other witnesses have been examined and on the direction of this Court, State has submitted the FSL report and it shows that the articles obtained from the source of prosecutrix did not test positive for the presence of sperm, hence DNA examination was not undertaken.

6. Having considered the Court testimony of prosecutrix and her father and also the FSL report, this Court deems it fit to release the applicant on bail, therefore, without commenting on the merits of the case, this repeat application is allowed in changed circumstances.

7. It is directed that the applicant shall be released on bail upon her furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court concerned for her appearance before the said Court on all such dates as may be fixed in this regard during pendency of the trial.

8. It is further directed that the applicant shall comply with the provisions of Section 437(3) of Cr.P.C. 9. Accordingly, this M.Cr.C. stands allowed and disposed of. (ANURADHA SHUKLA) JUDGE NP Signature Not Verified Signed by: NITESH PANDEY Signing time: 3/21/2024 3:53:37 PM

Click Here to Read the rest of this document