Durgesh Singh vs State Of U.P. And 3 Others
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Allahabad High Court

Durgesh Singh vs State Of U.P. And 3 Others on 12 December, 2023

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:237281
 
Court No. - 65
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44940 of 2023
 

 
Applicant :- Durgesh Singh
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Prabhakar Dwivedi,Vikram Bahadur Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Prabhakar Dwivedi along with Mr. Vikram Bahadur Yadav, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Durgesh Singh, seeking his enlargement on bail in Case Crime No. 217 of 2023, under Sections 363, 366, 376, 342, 506, 120-B IPC and Sections 3/4 POCSO Act, Police Station-Belghat, District-Gorakhpur during the pendency of trial.

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

5. Record shows that in respect of an incident, which is alleged to have occurred on 15.08.2023, a delayed FIR dated 16.08.2023 was lodged by first informant-Smt. Neelam (mother of the prosecutrix) and was registered as Case Crime No. 217 of 2023, under Sections 363, 506 IPC, Police Station-Belghat, District-Gorakhpur. In the aforesaid FIR, 4 persons namely - (1) Durgesh Singh (applicant herein), (2) Halchal Singh, (3) Surjeet Singh and (4) Bhanu Pratap have been nominated as named accused.

6. The gravamen of the allegations made in the FIR is to the effect that named accused abducted the minor daughter of the first informant i.e. the prosecutrix namely X aged about 15 years on 16.08.2023 at around 11:00 A.M.

7. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix had already been recovered on 16.08.2023 i.e. before lodging of the FIR dated 16.08.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 33 of the paper book. The prosecutrix in her aforesaid statement has supported the FIR. She has further alleged that she was molested by Durgesh, Surjeet and Halchal. However, in the later part of her statement, she has implicated the applicant-Durgesh for having dislodged her modesty. Subsequent to above, the prosecutrix was requested for her internal medical examination. However, the same was refused. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has reiterated her previous statement under Sections 161 Cr.P.C. In her aforesaid statement, the prosecutrix has further stated that she has studied upto Class-10th. Ultimately, the prosecutrix has rejoined her previous statement under Section 161 Cr.P.C.

8. After the statement of the prosecutrix was recorded under Section 164 Cr.P.C., she was again requested for her internal medical examination. The prosecutrix agreed for the same. In her statement before the Doctor, who medically examined the her, has reiterated her previous statement under Section 161 Cr.P.C. However, the Doctor, who medically examined the prosecutrix, did not find any injury on her person so as to denote commission of deliberate or forceful sexual assault. With regard to the private part of the prosecutrix, the Doctor has opined as follows:-

"Hymen - Torn.

Perineum - Normal.

External Urethral Meatus - Normal."

9. Certain samples were collected from the body of prosecutrix for pathological examination. However, the copy of the supplementary medico legal report has not been brought on record. The undergarments of the prosecutrix were also sealed. However, the requisite report in respect of the same is also not on record. As per the UPT test, the prosecutrix was not found to be in family way. Investigating Officer during course of investigation, recovered the document regarding the date of birth of the prosecutrix, which is the certificate dated 17.08.2023 issued by the Principal of the institution namely Rashtriya Sankrityayan Intermediate College, Belaghat, Gorakhpur where the prosecutrix was studying in Class-Xth [C.D. Parcha No. 12]. As per the said document, the date of birth of the prosecutrix is 09.10.2007. Consequently, the prosecutrix was aged about 15 years, 10 months and 19 days on the date of occurrence i.e. 15.08.2023. 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 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 17.10.2023 whereby applicant has been charge sheeted under Sections 363, 366, 376, 342, 506, 120-B IPC and Sections 3/4 POCSO Act.

10. According to the learned counsel for applicant, though the prosecutrix has passed her High School Examination and her date of birth recorded in the High School Certificate is 09.10.2007 but the same is not worthy of reliance. The prosecutrix had admittedly studied in a government institution i.e. Kasturba Gandhi Awasiya Balika Vidyalaya wherein her date of birth recorded in the school records as 02.12.2004. The documents regarding above have been brought on record by the learned A.G.A. in compliance of the order dated 29.11.2023 passed by this Court. It is thus urged that in view of above, the age of the prosecutrix cannot be conclusively concluded so as to invoke the provisions of the POCSO Act.

11. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. Though the prosecutrix in her statements under Sections 161 and 164 Cr.P.C. has alleged that her modesty was deliberately dislodged by the applicant, however, the medical evidence does not support the ocular version of the occurrence inasmuch as, no such signs were found on the body of prosecutrix by the Doctor, who conducted her medical examination, so as to denote commission of deliberate or forceful sexual assault upon the prosecutrix. It is then contended that the present prosecution of applicant is not only false but also malicious. The present criminal proceedings have been engineered on account of an extraneous consideration. To buttress his submission, he has invited the attention of Court to the document occurring at page 71 of the paper book. As per the aforesaid document, which is uploaded on the social media by the prosecutrix herself, she has denied the occurrence and according to her, the present criminal proceedings are false. Learned counsel for applicant thus contends that once the prosecutrix herself has not supported the FIR in her aforesaid document, therefore, the applicant is liable to be enlarged on bail.

12. 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 22.08.2023. As such, he has undergone more than 3 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, 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 on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits 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.

13. 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. It is true that the medical evidence does not support the ocular version of the occurrence, inasmuch as, no signs were found on the body of the prosecutrix to show commission of deliberate/forceful sexual assault upon her. Yet irrespective of above, the crux of the matter is that the prosecutrix in her statements under Sections 161 and 164 Cr.P.C. has clearly and categorically supported the FIR and further implicated the applicant in the crime in question. At this juncture, the learned A.G.A. has invited to the attention of the Court to the judgment of the Supureme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74. With reference to above, the learned A.G.A. submits that the prosecution of an accused for an offence of rape or sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix. The statements of the prosecutrix referred to above, are of impeccable character inasmuch as, they do not suffer from the vice of exaggeration, contradiction and embellishment. No such material has been brought on record on the basis of which, it can be said that present criminal proceedings initiated against applicant are false and malicious. Upto this stage, there is nothing on record to infer the innocence of applicant either. No attempt has been made by the learned counsel for applicant to establish the relationship in between the prosecutrix and the applicant. He, therefore, contends that arguments raised by the learned counsel for applicant that parties are related to each other and the present criminal proceedings have been engineered on account of extraneous consideration is a fanciful doubt as no material is on record to substantiate the same. As per the High School Certificate of the prosecutrix, the date of birth of the prosecutrix as recorded therein is 09.10.2007. The FIR giving rise to present criminal proceedings was lodged on 16.08.2023. As such, the prosecutrix was aged about 15 years, 10 months and 19 days. On the above conspectus, it is thus urged by the learned A.G.A. that since the prosecutrix is a young girl of tender as she is aged less then 16 years and has fully supported the FIR in her statements under Sections 161 and 164 Cr.P.C., and there being nothing on record to infer the false and malicious prosecution of applicant or the innocence of the applicant, therefore, the applicant does not deserve any sympathy of this Court. However, the learned A.G.A. could not explain the anomaly occurring in the date of birth of the prosecutrix recorded in her High School Certificate, which is 09.10.2007 and in the institution Kasturba Gandhi Awasiya Balika Vidyalaya i..e 02.12.2004. It is in the light of above that it is urged that the prosecutrix was aged about 18 years and 7 months. As such, the provisions of the POCSO Act are not applicable. To buttress his submission, he has referred to the judgment of this Court in Vishal Singh Vs. State of U.P and Others, 2022 (8) ADJ 517. The said anomaly regarding the date of birth of the prosecutrix remains unexplained up to this stage.

14. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the date of birth of the prosecutrix recorded in the Government Instituion namely Kasturba Gandhi Awasiya Balika Vidyalaya i..e 02.12.2004 whereas in the High School Certificate, the date of birth of the prosecutrix is 09.10.2007, as such, the age of the prosecutrix cannot be conclusively concluded at this stage, the judgment of this Court in Vishal Singh (Supra), the medical evidence does not support the ocular version of the occurrence, the clean antecedents of applicant, the period of incarceration undergone, 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 applicant stands crystalized, yet 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 period of incarceration undergone, therefore irrespective of the objections raised by the learned A.G.A. but without making any comment on the merits of the case, the applicant has made out a case for bail.

15. Accordingly the bail application is allowed.

16. Let the applicant-Durgesh Singh be released on bail in aforesaid case crime number on his 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.

17. 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 :- 12.12.2023/Vinay