Allahabad High Court
Om Prakash S/O Bagedan Alias ... vs State Of U.P. Thru. Prin. Secy. And ... on 2 August, 2022
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4785 of 2022
Applicant :- Om Prakash S/O Bagedan Alias Ramlakhan
Opposite Party :- State Of U.P. Thru. Prin. Secy. And 3 Others
Counsel for Applicant :- Sandeep Singh
Counsel for Opposite Party :- G.A.,Lalu Prasad Bhatt
Hon'ble Saurabh Lavania,J.
Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.
The present bail application has been filed by the applicant seeking bail in Case Crime No. 234 of 2021, under Sections-363, 376-DA I.P.C. & 3/4 of POCSO Act, Police Station-Kaisarganj, District-Bahraich.
Learned counsel for the applicant submitted that accused-applicant is innocent and has been falsely implicated in the instant case. As per case of prosecution, the informant initially preferred an application dated 12.07.2021 before the Police Station concerned alleging therein that the applicant, co-accused Manoj Kumar and Rakesh Kumar abducted her daughter and committed the crime (rape) with the her and also administered her intoxicant substance and based upon the same, the FIR was lodged on 12.07.2021 at about 12:30 PM Hours. It is stated that the victim was recovered, as per case of the prosecution, from the house of one Monu Singh S/o Ran Vijay and against the victim Monu Singh the victim levelled allegations. In this regard, reliance has been placed on para 11 of the counter affidavit. The prosecution dropped the name of Monu Singh and has filed charge sheet against the applicant and two others namely Rakesh Kumar and Manoj Kumar.
It is further submitted that as per averments made in the FIR, the offence under Section 376-DA IPC is attracted, however, injuries to attract Section 376DA were found by the Doctor concerned while examining the victim, though, in such type of cases, there must be injury of such nature. In this regard, reliance has been placed on the judgment passed in the case of Vijay Singh vs. State of U.P. (2021) 1JIC 707. Thus, the story of prosecution appears to be concocted.
He further submitted that in fact this is a case of consent and coming to know about the intimacy/affair between the applicant and victim, present FIR has been lodged. In this regard, he placed reliance on the statement of the victim recorded under Section 161 CrPC. It is next submitted that the victim before the Trial Court while making the statement under Section 164 CrPC has levelled the allegations against the applicant and other co-accused and this statement of victim is not credible, as it appears to be tutored one. It is in view of the statement given by the victim under Section 161 CrPC, as per which, victim on her own volition went with the applicant and established physical relations and thereafter, on her own reached her house.
He further submitted that the victim was mature enough and she always presented herself as major and as per opinion of the Doctor, the age of the victim, at relevant time, was 16-17, however, as per case of prosecution, the age of the victim, at the relevant time, was 15 years, which is based upon education certificates, as such, the age of the victim is in dispute and the same is subject to the evidence adduced by the parties before the Court concerned and at this stage of bail, the benefit of judgment on the issue of determination of age, is liable to extended in favour of the applicant. In this regard, reliance has been placed on the judgment dated 03.08.2018 of this Court passed in HABEAS CORPUS No. 21284 of 2018 (Deepa through her next friend Mithun v. State of U.P. and others). In continuation, it is stated that as per Right to Education Act, 2009, the relevant proof of date of birth would be birth certificate issued under the provisions of Births, Deaths and Marriages Registration Act, 1886 or on the basis of any such relevant documents, however, the prosecution has not indicated that on what basis the date of birth of victim has been indicated in school certificate. It is also stated that the victim had sufficient knowledge and capacity to full import of what she was doing and had only thereafter on her own joined the applicant.
It is also submitted that there is no apprehension that after being released on bail, the applicant may flee from the course of law or may otherwise misuse the liberty of bail and the applicant is in jail since 17.07.2021.
Sri Lalu Prasad Bhatt, learned counsel for the complainant/informant as also Sri Pramod Kumar Srivastava, learned A.G.A. opposed the prayer for grant of bail. They submitted that DNA report supports the case of prosecution.
In response, learned counsel for the applicant submitted that it is apparent from the statement made by victim herself under Section 161 CrPC that she established physical relations with the applicant. He further submitted that till date the statement of victim has not been recorded and trial is still pending consideration. In this regard, reliance has been on Section 35 of POCSO Act, 2012 which says that the statement of the victim should be recorded preferably within one month from the date of framing of charge and trial shall be concluded preferably within one year thereafter.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and keeping in mind the statement(s) recorded under Sections 161 and 164 CrPC, period of incarceration as also the judgment on the issue of determination of age and medical opinion and without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant- Om Prakash S/O Bagedan Alias Ramlakhan be released on bail in aforesaid Case Crime, on his furnishing personal bond to the satisfaction of the court concerned forthwith. Applicant is also directed to furnish two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed.
(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(6) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 2.8.2022
Vinay/-
