Kunal Bajpai Alias Monu S/O Lalti ... vs State Of U.P. Thru. Prin. Scey. ...
2023 Latest Caselaw 22946 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:56114
 
Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4212 of 2022
 

 
Applicant :- Kunal Bajpai Alias Monu S/O Lalti Bajpai
 
Opposite Party :- State Of U.P. Thru. Prin. Scey. Home, Lko. And 3 Others
 
Counsel for Applicant :- Pankaj Gupta,Tushar Gupta
 
Counsel for Opposite Party :- G.A.,Rajiv Raman Srivastava
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Sri Pankaj Gupta, learned counsel for the applicant, Sri Adarsh Shukla holding brief of Sri Rajiv Raan Srivastava, learned counsel for the complainant, Sri Ravish Chandra Mishra, learned A.G.A. for the State and perused record.

2. The present bail application has been filed by the applicant with a prayer for bail in Case Crime No.418 of 2021 under Section 363, 366, 376, 323, 504 IPC Section 3/4 POCSO Act, PS Kotwali City, district Sitapur.

3. Learned counsel for the applicant has submitted that FIR was lodged under Section 363, 366, 323 IPC and the complainant has mentioned in the FIR that prosecutrix was abducted by the applicant. The complainant has further mentioned in the FIR that she brought back the prosecutrix to her house. The statement of prosecutrix was recorded under Section 161 CrPC in which she has stated that she had gone along with applicant Maigalganj, district Lakhimpur Kheri out of her freewill. He has further submitted that statement of prosecutrix was recorded under Section 161 CrPC in which no allegation of rape was levelled against the applicant. However, statement of prosecutrix under Section 164 CrPC was recorded and in the said statement, the prosecutrix has changed her version and stated that on the pretext of marriage with the applicant, she had gone along with him to Ramkot at his uncle's house and she has stated before the Court that the applicant established physical relation. It appears that the prosecutrix remained in the house for many days. Learned counsel for the applicant has submitted that it is a case of consent and the prosecutrix did not raise any alarm and she remained in the house where family members and relatives of the applicant were also present. He has further submitted that as per medical report, the age of the prosecutrix is 17 years.

4. Learned counsel for the applicant has submitted that benefit of two years margin will go in favour of the applicant and it may be inferred that the prosecutrix was major at the relevant time. In support of his argument, he has relied on paragraph-23 of the judgment of Supreme Court in the case of Manoj alias Monu alias Vishal Chaudhary. Vs. State of Haryana and another, (2022) 6 SCC 187, which is quoted below:-

"23. In Ramdeo Chauhan v. State of Assam, it was held that x-ray Ossification Test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate test so as to indicate the exact date of birth of the person concerned. It was held as under: SCC pp. 738-39, para 21)

"21. Relying upon a judgment of this Court in Jaya Mala v. Home Secy., Govt. of J&K, the learned defence counsel submitted that the Court can take notice that the marginal error in age ascertained by radiological examination is two years on either side. The aforesaid case is of no help to the accused inasmuch as in that case the Court was dealing with the age of a detenu taken in preventive custody and was not determining the extent of sentence to be awarded upon conviction of an offence. Otherwise also even if the observations made in the aforesaid judgment are taken note of, it does not help the accused in any case. The doctor has opined the age of the accused to be admittedly more than 20 years and less than 25 years. The statement of the doctor is no more than an opinion, the court has to base its conclusions upon all the facts and circumstances disclosed on examining of the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. An x-ray ossification test may provide a surer basis for determining the age of an individual than the opinion of a medical expert but it can by no means be so infallible and accurate a test as to indicate the exact date of birth of the person concerned. Too much of reliance cannot be placed upon textbooks, on medical jurisprudence and toxicology while determining the age of an accused. In this vast country with varied latitudes, heights, environment, vegetation and nutrition, the height and weight cannot be expected to be uniform."

5. Learned counsel for the applicant has further submitted that the applicant has no criminal history and he is in jail since 16.9.2021.

6. On the other hand, learned counsel for the complainant has opposed the bail and has submitted that the age of the prosecutrix was 17 years at the relevant time and even if it is a case of consent, it will not make any help to the applicant. He has submitted that the statement under Section 164 CrPC of the prosecutrix is indicating that sexual offence was committed by the applicant, therefore, the bail is liable to be rejected.

7. Similarly, learned A.G.A. has also opposed the bail and has submitted that the applicant has committed sexual assault against the prosecutrix, therefore, the bail is liable to be rejected.

8. Considering over all facts and circumstances of the case, the argument that it is a case of consent, the argument that the applicant did not commit offence, the argument of the benefit of two years margin of upper age limit will go to the applicant, and the judgment relied by the learned counsel for the applicant, it is a fit case for bail.

9. Let the applicant, Kunal Bajpai @ Monu be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.

10. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.

Order Date :- 23.8.2023

Rajneesh JR-PS)