Sunil vs State Of U.P. And 3 Others
2023 Latest Caselaw 22134 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:165357
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29826 of 2023
 

 
Applicant :- Sunil
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Atul Kumar Shahi,Ravi Shankar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Atul Kumar Shahi, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This application for bail has been filed by applicant Sunil seeking his enlargement on bail in Case Crime No. 73 of 2022, under Sections 363, 366, 323, 354-B IPC and Section 376-D IPC and Section 5g, 6, 7, 8 POCSO Act, Police Station- Vichawan, District Mainpuri during the pendency of trial.

At the very outset, learned A.G.A. submits that notice of present application for bail has been served upon opposite party-2 on 20.6.2023. However, inspite of the service of notice, no one has put in appearance on behalf of first informant to oppose this application.

Record shows that, in respect of an incident which is alleged to have occurred on 2.5.2022, a belated F.I.R. dated 5.5.2022 was lodged by first informant- Sanjo Devi and was registered as Case Crime No. 73 of 2022, under Sections 363, 366, 323, 354-B IPC and Section 376-D IPC and Section 5g, 6, 7, 8 POCSO Act, Police Station- Vichawan, District Mainpuri. In the aforesaid F.I.R. three persons namely, Ravi, Sunil and Sanjay have been nominated as named accused.

The gravamen of the allegations made in the F.I.R. is to the effect that named accused enticed away the minor daughter of first informant namely, X aged about 16 years.

After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms Chapter XII Cr.P.C. The prosecutrix was recovered on 9.5.2023. Thereafter the statement of the prosecutrix was recorded under section 161 Cr.P.C., Same is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R. and has established the complicity of named accused and two other accused. However, in her aforesaid statement she has not alleged that her modesty was dislodged by any of the accused.

Thereafter the prosecutrix was requested for her medical examination. The prosecutrix in her statement before the Doctor who medically examined her has rejoined her earlier statement recorded under section 161 Cr.P.C. The Doctor who examined the prosecutrix, however, did not find any signs on her body so as to denote commission of sexual assault. With reference to private part of the prosecutrix, the Doctor opined as follows:-

"Hymen- Intact"

Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C. which is on record at page 46 of the paper book. However, the prosecutrix in her aforesaid statement has departed from her earlier statement recorded under section 161 Cr.P.C. and before the Doctor. During course of investigation, Investigating Officer recovered the Transfer certificate of the prosecutrix. In the said copy of the Scholar Register/certificate the date of birth of the prosecutrix is recorded as 1.1.2006. The occurrence is alleged to have occurred on 2.5.2022. As such, the prosecutrix was aged about 16 years and four months. Investigating Officer also examined first informant and other witnesses under section 161 Cr.P.C who have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly submitted the charge sheet dated 5.9.2022, whereby all the named accused have been charge sheeted under sections 363, 366, 323, 354-B IPC and Section 376-D IPC and Section 5g, 6, 7, 8 POCSO Act, Police Station- Vichawan, District Mainpuri.

Learned counsel for applicant submits that this Court passed an order dated 17.7.2023, whereby CJM Mainpuri was directed to get the ossification test of the prosecutrix conducted. For ready reference the order dated 17.7.2023 is reproduced herein under:

"Heard Sri Sumit Kumar Srivastava, learned counsel for the applicant, learned AGA for the State and perused the record.

By means of the present bail application, the applicant is involved in case crime no. 73 of 2022 under Sections 363, 366, 323, 354B, 376D IPC and Sections 5g, 6, 7,8 of the POCSO Act, P.S. Vichawan, District Mainpuri.

Submission made by the counsel that as per the FIR the age of the girl is 16 years and 4 months as per her Transfer Certificate. There is nothing on record to establish the age of the victim on the date of the incident.

Under such circumstances, CJM, Mainpuri and CMO, Mainpuri are directed to organize the ossification test of the victim.

CMO, Mainpuri is required to constitute a panel of three senior doctors, who shall conduct the ossification test of the victim and give opinion about the expected age of the victim on the date of the incident to be disclosed by the victim or the informant of the case.

This exercise has to be completed within a period of 15 days and CJM, Mainpuri shall ensure the presence of victim before the panel of doctor and give its report in a sealed cover on or before 08.08.2023 before this Court.

Put up this case as fresh on 08.08.2023 before appropriate Court.

Let copy of this order may be given to learned AGA for communication and compliance of the order. "

In compliance of above order dated 17.7.2023, CJM, Mainpuri has submitted his report, annexeing alongwith the same, the report of the medical board. As per the medical opinion the prosecutrix is said to be aged about 17 years.

Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused but he is innocent. Applicant has been falsely implicated in above mentioned case crime number. Referring to the statements of the prosecutrix recorded under section 161 Cr.P.C. before the Doctor and under section 164 Cr.P.C. he submits that prosecutrix has departed from her earlier statement in his subsequent statement recorded under section 164 Cr.P.C.

At this juncture, learned counsel for applicant has invited the attention of Court to the judgment of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74 and on basis thereof, he submits that prosecution of an accused for an offense of rape or sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of prosecutrix. However, in such a circumstance, the statement of the prosecutrix must be clear, categorical and consistent. The same should also be devoid of any ambiguity. Meaning thereby it should be of impeccable character. When the statement of the prosecutrix is examined in the light of above, it cannot be said that the same is of impeccable character. No prosecution of applicant can be maintained on the basis of said statement of the prosecutrix. Co-accused Sanjay has already been enlarged on bail by this Court vide order dated 1.6.2023, passed in Criminal Misc. Bail Application No. 6771 of 2023 (Sanjay Vs. State of U.P.a nd three others). Copy of which is on record at page 51 of the paper book. On the above premise, it is urged by learned counsel for applicant that case of present applicant is similar and identical to aforementioned co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid accused so as to deny him bail. He, therefore, submits that in view of above and for the facts and reasons recorded in the obove order, present applicant is also liable to be enlarged on bail.

Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 16.8.2022. As such, he has undergone more than ten months of incarceration. 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.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that, when the statements of the prosecutrix when examined as a whole are not of impeccable character, the judgement of the Supreme Court in Phool Singh (Supra), the co-accused Sanjay has already been enlarged on bail, the learned A.G.A. could not point out from the record, that the case of present applicant is distinguishable from bailed out co-accused, the police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the judgementof the Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The state of maharashtra and Another, 2023 Live law (SC) 373 (para 5) the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Sunil, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 17.8.2023

Arshad