Allahabad High Court
Nilesh 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:167708
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36337 of 2023
Applicant :- Nilesh
Opposite Party :- State Of U.P.And 3 Others
Counsel for Applicant :- Bholanath Yadav,Ajai Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Ms. Sujata Chaudhary, learned AGA 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 the bail application upon the victim/legal guardian as well as upon the CWC.
By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.28 of 2023 at Police Station-Tahabarpur, District-Azamgarh under Sections 363, 366, 376 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 02.04.2023.
The bail application of the applicant was rejected by the learned trial court on 20.07.2023.
The following arguments made by Shri Bholanath Yadav, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Sujata Chaudhary, learned AGA from the record, entitle the applicant for grant of bail:
1. Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.
2. The victim was wrongly shown as a minor of 14 years of age in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) on the following grounds:
(i) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. The school certificate showing her age as 15 years and 19 days is not reliable.
(ii) The victim in her statement under Section 161 and 164 Cr.P.C. has asserted that she is 15 and 18 years of age respectively.
(iii) Medico-legal examination (not the age determination test) records that the victim is 16 years of age.
(iv) The medical report drawn up to determine the age of the victim opines that she is around 16-18 years of age.
Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific criteria as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
4. The victim and the applicant were intimate.
5. The F.I.R. is the result of opposition of the victim's family to the said relationship.
6. The victim in her statement under Section 164 Cr.P.C. has admitted to intimacy with the applicant. She has also asserted that she herself called the applicant at a spot near Union Bank, Tahabarpur. Thereafter, she went to Azamgarh with the applicant by bus and thereafter, to Manesar, Haryana. She has also stated that she got married to the applicant of her own volition and their marriage has been consummated.
7. False and aggravated allegations were made under Section 164 Cr.P.C. by the victim at the behest of her parents to save the failing prosecution case and to deflect attention from her own conduct.
8. Major inconsistencies in the FIR, the statement under Section 161 and 164 Cr.P.C. discredit the prosecution case.
9. The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.
10. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.
11. The applicant does not have any criminal history apart from this case.
12. 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-Nilesh 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.
Before parting some observations learned trial court while rejecting the bail application has found that the age of the victim on the date of incident to be 15 years and 20 days, on the footing of her date of birth recorded in the school certificate. Learned trial court neglected to consider the ossification report as well as the statement of the victim for determination of the age for purposes of the bail application. The said documents were liable to be considered in light of the law laid down by this Court in Monish (supra).
A copy of this order be sent to the learned District Judge to ensure that the judgment of this Court in Monish (supra) is duly complied with while considering the bail applications of the accused persons under the POCSO Act.
Order Date :- 21.8.2023
Vandit
