- (1.) Heard Sri Onkar Nath Singh Rathore, learned counsel for the appellant and Sri P K Mishra, learned counsel for the State. None for the private respondents though, according to learned State Counsel, have been served by concerned Sub Inspector. Appeal is formally admitted for hearing. With the consent of learned counsel for the parties, the appeal is heard finally.
(2.) Challenge in the present appeal is to the impugned order dated 12.3.2019 passed by the Second Additional Sessions Judge, Pratapgarh in Bail Application No.2452 of 2018, whereby the Special Court has rejected the bail application filed by the appellant under Section 439 of Cr PC, arising out of Crime No.161/2017, under Section 376 of IPC and Section 3 (2) (v) of SC/ST Act, Police Station Aspur Devsara, District Pratapgparh.
(3.) As per prosecution case, on 29.7.2017, FIR was lodged by Ram Ashish, father of prosecutrix, alleging in it that for his livelihood, he has gone out of his village and when he returned, he came to know that his daughter (prosecutrix) is carrying four months' pregnancy with the appellant, who was his next door neighbour. Based on this FIR, offence under Section 376 of IPC, Section 3/4 of POCSO and Section 3 (2) (v) of SC/ST Act was registered against the appellant. Counsel for the appellant submits that: (i) the appellant and the prosecutrix were involved in affair and even as on date, the appellant is willing to keep the prosecutrix with him; (ii) as per medical report of the prosecutrix, she was 18 years of age; (iii) apparently, present is a case of consent; (iv) the provisions of the SC/ST Act would not attract against the appellant, as it is not the case of the prosecution that because she belongs to a particular caste she was subjected to offence by the appellant; (v) the appellant is in jail since 31.7.2017 and there is no substantial progress in the trial which may take sometime for its final disposal; and (vi) there is no admissible evidence showing the prosecutrix to be minor. ;