Allahabad High Court
Sachin vs State Of U.P. on 19 February, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 30
Case :- BAIL No. - 9587 of 2019
Applicant :- Sachin
Opposite Party :- State of U.P.
Counsel for Applicant :- Uma Shanker
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Heard learned counsel for the bail-applicant Sri Uma Shanker, Advocate and learned A.G.A. for the State and perused the record.
The present bail application is filed on behalf of the accused-applicant- Sachin who is involved in Case Crime No.122 of 2019, under Sections 376, 506 of I.P.C. and Section 3/4 P.O.C.S.O. Act, registered at Police Station- Bara Sagwar, District- Unnao.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Additional Sessions Judge, Court No.7, Unnao vide order dated 8.8.2019. A copy of the bail application has already been received in the office of learned G.A.
Counter affidavit and rejoinder affidavit between the parties have been exchanged.
Learned counsel for the bail-applicant reading over the first information report submitted that the complainant herself has lodged the F.I.R. with regard to the incident dated 21.6.2019 stating, she was on the way to her field at about 3:00 p.m., when the present accused-applicant intercepted her and dragged forcibly inside the jungle, committed rape and thereafter take away on his bike and left at railway station, Indamau.
Learned counsel further drew the attention towards the fact that the incident of 21.6.2019 was reported in the police station on 26.6.2019, however, the doctors who done the medical examination of the victim opined on the basis of absence of external mark of injury on the person of victim as well as on private parts that the possibility of sexual assault cannot be confirmed.
Learned counsel for the applicant further submitted that in the statement under Section 161 Cr.P.C., the victim has reiterated the incident as report in the F.I.R. but in statement recorded under Section 164 Cr.P.C. before the Magistrate, she has slightly improving that some other person was driving the motor bike and the present accused-applicant was sitting as pillion rider keeping between the victim. When they were on ride, she cried, then people of the locality intercepted and rescued her.
Learned counsel for the applicant further submitted that the contradiction and inconsistency in both the statement makes the story unbelievable at this stage, however, in the affidavit filed in support of the bail application, it is firmly stated in para-4 that the present accused-applicant remained in love affair with the victim and the entire incident is consented.
Learned counsel further submitted that since the present accused-applicant is of tender age having no criminal antecedent and prima facie the allegation as to the rape is not established against the accused-applicant as well as the age of the victim is radiologically found 19 years, the offence under Section 3/4 POCSO Act is not constituted prima facie. As such he deserves to be released on bail.
On the other hand, learned A.G.A on the basis of instructions and facts available in the case diary submitted that the victim is a minor, as per the school certificate of High School examination issued by the Board of High School and Intermediate Education wherein the date of birth is 19.3.2002. As such, she has not attained the age of majority on the date of incident.
Learned A.G.A. further submitted that so far as the victim's statement under Sections 161 Cr.P.C. and 164 Cr.P.C. is concerned, the allegation as to the rape is constituted against the present accused-applicant, therefore, being victim her statement cannot be over ruled by the medical evidences or anything otherwise.
However, there is no rebuttal on the part of prosecution with regard to the fact alleged in para-4 of the affidavit filed in support of the bail application as to the prior acquaintance of the accused-applicant and the victim being under love affair and the accused-applicant having no criminal antecedent.
Learned counsel for the bail applicant in rebuttal drew attention towards the age of the victim on the alleged date of incident i.e., 21.6.2019 more than 17 and a half years, approximately three months less from attaining the age of majority, however, radiological test confirmed the age of the victim about 19 years.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Looking into the role, complicity of the accused-applicant in the offence, the prima facie case without making any comment as to the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Sachin) involved in Case Crime No.122 of 2019, under Sections 376, 506 of I.P.C. and Section 3/4 POCSO Act, registered at Police Station- Bara Sagwar, District- Unnao be released on bail on his furnishing personal bond of Rs.50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(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 misuse 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 applicants 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.
Order Date :- 19.2.2021/Gaurav/-
