Khurshid Ahamad vs State Of U.P. And 3 Others
2023 Latest Caselaw 21909 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:164538
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34168 of 2023
 

 
Applicant :- Khurshid Ahamad
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Jitendra Singh
 
Counsel for Opposite Party :- G.A.,Janardan Yadav
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Jitendra Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Janardan Yadav, the learned counsel representing first informant-opposite party 2.

2. Perused the record.

3. This application for bail has been filed by applicant-Khurshid Ahamad seeking his enlargement on bail in Case Crime No. 221 of 2023, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Bilariyaganj, District-Azamgarh during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 12.06.2023, a delayed FIR dated 13.06.2023 was lodged by first informant-Rammilan Maurya (Father of the prosecutrix) and was registered as Case Crime No. 221 of 2023, under Sections 363, 366 IPC, Police Station-Bilariyaganj, District-Azamgarh. In the aforesaid FIR, applicant-Khurshid Ahamad has been nominated as solitary named accused.

6. The gravamen of the allegations made in the FIR to the effect that named accused Khurshid Ahamad (applicant herein) enticed away the minor daughter of the first informant namely X aged about 17 years and 6 months.

7. After above-mentioned FIR was lodged, the Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 14.06.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. wherein the prosecutrix has categorically stated that her modesty was dislodged repeatedly by the applicant on the false promise of marriage. Thereafter, the prosecutrix was requested for her medical examination. The same is part of the case diary. The Doctor, who examined the prosecutrix, did not submit any opinion with regard to the crime in question. However, with regard to the private part of the prosecutrix, he opined as follows:-

"Healed torned Hymen"

8. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 42 of the paper book. The prosecutrix in her aforesaid statement has departed from her earlier statement recorded under Section 161 Cr.P.C. During course of investigation, Investigating Officer recovered the High School Certificate of the prosecutrix wherein her date of birth is recorded as 20.09.2006. The occurrence in question has occurred on 12.06.2023. As such, the prosecutrix was aged about 16 years, 8 months and 22 days on the date of occurrence. Investigating Officer further examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. On the basis of above and other material collected by him during the course of investigation, Investigating Officer came to the conclusion that an offence under Section 376 IPC and Sections 3/4 Dowry Prohibition Act is clearly made out against applicant. He, accordingly, submitted the charge sheet dated 12.07.2023 whereby applicant has been charge sheeted under Sections 363, 366, 376 IPC and Sections 3/4 Dowry Prohibition Act.

9. Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Referring to the statements of the prosecutrix as noted herein above, he contends that the applicant is liable to be enlarged on bail. The prosecutrix is a willing and consenting party. There is contradiction in the statements of the prosecutrix as recorded under Sections 161 and 164 Cr.P.C. Applicant is in jail since 16.06.2023. As such, he has undergone almost 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

10. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 16 years, 8 months and 11 days on the date of occurrence. As such, prosecutrix is minor. In view of above, the willings and consent of the prosecutrix is wholly immaterial. Attention of the Court was then invited to the statement of the prosecutrix as recorded under Section 161 Cr.P.C. and on basis thereof, they contend that the modesty of the prosecutrix has been dislodged repeatedly on the false promise of marriage. Reference was also made to the following judgments of the Supreme Court in (i). Sonu alias Subhash Kumar Vs. State of U.P., 2021 SCC OnLine SC 181, (ii). Pramod Suryabhan Pawar Vs. State of Maharashtra, 2019 SCC OnLine SC 1073, (iii). Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108, (iv). Criminal Appeal No. 442 of 2022 (Mandar Deepak Pawar Vs. State of Maharashtra and Another) decided on 27.07.2022 & (v). Naim Ahmed Vs. State (NCT of Delhi), 2023 SCC OnLine SC 89. Reference was also made to the medico legal examination report of the prosecutrix and much emphasis was laid on the opinion of the Doctor with regard to the private part of the prosecutrix. It is thus contended that the medical evidence clearly supports the statement of the prosecutrix as recorded under Section 161 Cr.P.C. On the cumulative strength of above, they, therefore, contend that no sympathy be shown by this Court in favour of applicant.

11. When confronted with above, the learned counsel for applicant could not overcome the same.

12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, complicity of applicant, accusations made coupled with the fact that it is an undisputed fact that the date of birth of the proscutrix is 20.09.2006, as such, the prosecutrix was aged about 16 years, 8 months and 11 days on the date of occurrence mentioned in the FIR, since the prosecutrix is below 18 years of age, therefore, her consent, if any, is meaningless, though there is contradiction in the statements of the prosecutrix as recorded under Sections 161/164 Cr.P.C. but the statement under Section 161 Cr.P.C. is clearly corroborated the medical opinion, which is the part of the case diary, the applicant has dislodged the modesty of a young girl on the false promise of marriage, the issue as to whether, false promise was made or not, cannot be decided at this stage nor any such material has been brought on record to contradict the said statements of the prosecutrix but without making any comments on the merits of the case, this Court does not find any good ground to enlarge the applicant on bail,

13. As a result, present application for bail fails and is liable to be rejected.

14. It is accordingly rejected.

Order Date :- 16.8.2023

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