Allahabad High Court
Dharmendra Kushwaha vs State Of U.P. And 3 Others on 21 August, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:167849
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36496 of 2023
Applicant :- Dharmendra Kushwaha
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Satyendra Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Ms. Sujata Choudhary, learned A.G.A. for the State contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served notices of the bail application upon the the victim as well as the CWC.
By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 261 of 2022 at Police Station- Kotwali Hata, District- Kushinagar, under Sections 363, 366, 376 IPC, Section 5/6 POCSO Act. The applicant is in jail since 20.04.2023.
The bail application of the applicant was rejected by the learned trial court on 26.07.2023.
The following arguments made by Shri Satyendra Pandey, learned counsel on behalf of the applicant,which could not be satisfactorily refuted by Ms. Sujata Choudhary, learned AGA and Sri S.P.K. Tripathi, learned counsel for the first informant from the record, entitle the applicant for grant of bail:
1. The applicant has contested the minority of the victim as stated in the prosecution case.
2. The victim was wrongly shown as a minor only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. The age of the victim is assailed on the following grounds in light of the judgment rendered by this Court in Criminal Misc. Bail Application No. 55026 of 2021 (Monish Vs State of U.P. and others).
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii). The age of the victim was incorrectly entered by her parents in the school records only to give her an advantage in life. School records depicting age of the victim as 16 years and 7 months are unreliable.
(iii) The victim under in her statements under Sections 161 Cr.P.C. and 164 Cr.P.C. has stated that she is 17 years and 6 months of age.
(iv) The medical report drawn up to determine the age of the victim opines that she is more than 18 years of age. The victim is infact a major.
4. The applicant and the victim were intimate.
5. The FIR is a result of parental opposition of the victim's family to the said relationship.
6. The victim in her statements under Sections 161, 164 Cr.P.C. has admitted to intimacy with the applicant. She has also asserted that she went alone to Gorakhpur by bus and thereafter she travelled to Delhi and thereon at Haryana. She met her love interest at Haryana and she also got married to the applicant of her own volition in a temple.
7. No allegation of abduction, rape or forceful assault has been made by the victim against the applicant in her statements.
8. Material contradictions in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.
9. Medical evidence to corroborate the commission of rape by the applicant with the victim has been produced by the prosecution.
10. The applicant does not have any criminal history apart from this case.
11. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Dharmendra Kushwaha 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 below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
Learned trial court while determining the issue of age for the purpose of bail application has only noticed the educational certificates which records her date of birth as 25.08.2005. However, learned trial court has neglected to consider the ossification test report and other evidences in the record as records the age of the victim.
Learned trial court has not acted in consonance with the judgment of this Court rendered in Monish (supra).
The District Judge to ensure that the judgment is duly circulated and complied by the trial courts while deciding the bail application.
Order Date :- 21.8.2023
Jaswant
