Allahabad High Court
Kehsav @ Tulsi vs State Of U.P. And 3 Others on 11 January, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34780 of 2022
Applicant :- Kehsav @ Tulsi
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Rajesh Kumar Dubey,Mohit Gautam,Suneel Kumar Yadav
Counsel for Opposite Party :- G.A.,Anshul Kumar Singhal
Hon'ble Sanjay Kumar Singh,J.
Counter affidavit filed on behalf the informant/opposite party no.2 is taken on record.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and Sri Anshul Kumar Singhal, learned counsel appearing on behalf of the informant / complainant.
The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No.25 of 2022, under Sections 363, 376 I.P.C. and Section 3/4 POCSO Act, Police Station - Kotwali Nagar, District - Etah during the pendency of trial.
As per the prosecution case, in brief, the informant who is father of victim lodged F.I.R. on 09.01.2022 with regard to incident which took place on 05.01.2022 against the applicant making allegation inter alia that his daughter/victim was enticed away by the applicant.
The main substratum of the argument of learned counsel for the applicant is that the victim was recovered on 25.03.2022 and when she herself appeared before Child Welfare Committee, District Etah, her statement under Sections 161 and 164 Cr.P.C. was recorded in which she has disclosed inter alia that she is aged about 18 years and applicant was known to her for last one year and there was telephonic conversation also between them. On 05.01.2022, she had gone to Haridwar with the applicant. Since, her parents were not ready for her marriage with the applicant, therefore, she solemnized marriage with the applicant in Haridwar on 01.02.2022. She further stated that physical relation with the applicant was made with her consent. Since, she loved the applicant, therefore, she want to go with the applicant. It is also pointed out that as per High School Mark Sheet of the victim, her date of birth is 01.06.2004, as such on the date of incident i.e. 05.01.2022, she was aged about 17 years, 7 months and 4 days.
Learned counsel for the applicant relying upon the judgment of the Apex Court in the case of Jaya Mala Vs. Home Secretary Government of J & K and others reported in 1982 (2) SCC 538 submits that it is well settled that there is always marginal error of two years on either side in determining the age. Placing reliance upon the decision of Hon'ble Supreme Court in Umesh Chandra Vs. State of Rajasthan, AIR 1982 SC 1057, learned counsel for the applicant further submits that sometimes parents change the age of their children to get some material benefit. In the above mentioned decision, the Apex Court held that in our country, it is not uncommon for parents sometimes to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular service which would be denied to a child as under the original date of birth he would be either under aged or ineligible.
On the strength of aforesaid facts, it is submitted that the victim was major and consenting party with the applicant. The applicant has been falsely implicated in this case. Lastly it is submitted by learned counsel for the applicant that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 30.03.202 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that in this case, informant and victim have already been examined before the trial court as P.W.-1 and P.W.-2. It is also pointed out that the victim in her statement before the trial court has stated that physical relation was made by the applicant without her consent, but does not dispute the above factual aspect of the matter as argued on behalf of the applicant.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that victim in her statement before the trial court has also stated inter alia that the applicant was known to her since last two years and they used to talk with each other.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, possibility of the victim being consenting party cannot be ruled, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant - Kehsav @ Tulsi 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) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iii) That after her release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the appellant.
Order Date :- 11.1.2023
Atul
