Allahabad High Court
Chhotu Bind vs State Of U.P. And 3 Others on 8 August, 2023
Bench: Sameer Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:159006
Court No. - 70
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32105 of 2023
Applicant :- Chhotu Bind
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Shashi Dhar Goswami,Pradeep Kumar Rai
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Verma,Renu Swarnkar
Hon'ble Sameer Jain,J.
1. List is being revised. None appeared on behalf of the informant. However, learned AGA, for the State, is present.
2. Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Pradeep Kumar Rai, learned counsel for the applicant and Sri Imran Khan, learned AGA, for the State.
3. The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail in Case Crime No.80 of 2023, under Sections 363, 366 and 376(3) IPC and Section 5L/6 POCSO Act, Police Station Kotwali, District Ghazipur during pendency of the trial.
4. FIR of the present case was lodged against the applicant and four others under Section 363 IPC and according to the FIR, applicant with the help of other co-accused persons enticed away the daughter of the informant aged about 16 years.
5. Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and baseless and actually daughter of the informant had gone along with applicant according to her own wish and she also performed marriage with applicant and this fact is evident from her both the statements recorded under Sections 161 and 164 Cr.P.C.
6. He further submits that although as per the School Leaving Certificate the date of birth of the prosecutrix was just below 15 years at the time of incident but even after X-ray the Doctor intentionally did not disclose the raidological age of the prosecutrix although from X-ray report it appears that she was more than 18 years of age as her both the wrist and elbow epiphysis were found fused.
7. He further submits that applicant and prosecutrix both were having love affair and it is a case of love affair.
8. He further submits that applicant is not having any previous criminal history and in the present matter he is in jail since 10.3.2023.
9. Per contra, learned AGA opposed the prayerfor bail and submits that according to the school record victim was below 15 years at the time of incident but could not dispute the fact that as per her X-ray report her both wrist and elbow epiphysis were found fused and Doctor did not provide her radiological age. He further could not dispute the fact that in her both the statements recorded under Sections 161 and 164 Cr.P.C. prosecutrix categorically stated that she had gone along with applicant on her own and also performed marriage with him.
10. I have heard learned counsel for the parties and perused the record of the case.
11. Although from the school leaving certificate of the prosecutrix it appears that at the time of incident she was around 15 years old but in view of the judgment of the Apex Court in the case of P. Yuvaprakash Vs. State represented by Inspector of Police (Criminal Appeal No (S). 1898 of 2023 dated 18.7.2023 the School Leaving Certificate of a child is not admissible for the purpose of her age under the provisions of POCSO Act, therefore, merely on the basis of School Leaving Certificate of the prosecutrix at this stage it cannot be said that she was around 15 years old at the time of incident.
12. Further, as per X-ray report of the prosecutrix her both wrist and elbow epiphysis were found fused although Doctor did not give her radiologcial age.
13. Further, from the statements of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. it appears that she was having love affair with the applicant and had gone according to her own wish with him and also performed marriage with him.
14. Law is settled that bail applications should not be dismissed either for punitive or preventive purposes.
15. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.
16. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
17. Let the applicant-Chhotu Bind be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
18. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
19. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 8.8.2023
SKM
