Allahabad High Court
Vikas Kumar vs State Of U.P. And 3 Others on 24 July, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:150600
Order reserved on:- 13.7.2023
Order delivered on:- 24.7.2023
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28519 of 2023
Applicant :- Vikas Kumar
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Pawan Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Pawan Kumar Shukla, 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 Vikas Kumar seeking his enlargement on bail in Case Crime No. 122 of 2023 under Sections 363, 366, 376(3) IPC and 3/4 POCSO Act, Police Station Thakurdwara, District Moradabad during the pendency of trial.
4. At the very outset the learned A.G.A. submits 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 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 1.4.2023, a delayed F.I.R. dated 2.4.2023 was lodged by first informant opposite party 4 namely Yogesh Joshi (Father of the prosecutrix) and was registered as Case Crime No. 122 of 2023 under Section 363 IPC, Police Station Thakurdwara, District Moradabad. In the the aforesaid F.I.R., applicant Vikas Kumar has been nominated as solitary named accused.
6. The gravamen of the allegations made in the F.I.R. is to the effect that applicant is alleged to have enticed away the minor daughter of the first informant namely Kumkum aged about 16 years.
7. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with the statutory investigation of concerned case crime no. in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 8.4.2023. Thereafter the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page-24 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary she has stated that she is aged about 15 years and is in love with the applicant. On 1.4.2023, she accompanied the applicant and went to Rajasthan. They stayed in a Hotel and during this period, they maintained physical relation. They solemnized marriage in Rajasthan at Khatu Shyam Dham. Thereafter the prosecutrix was requested for her medical examination, which is on record at page-28 of the paper book. The prosecutrix did not make any statement before the doctor who medically examined her. The doctor who medically examined the prosecutrix did not find any external injuries on the body of the prosecutrix so as to denote commission of sexual assault. However certain samples were taken from the body of the prosecutrix for pathological examination. The supplementary medico-legal report is on record which is at page-31 of the paper book. The result of the same is however negative. Ultimately the statement of the prosecutrix was recorded under Section 164 Cr.P.C. which is on record at page-38 of the paper book. The prosecutrix in her aforesaid statement had rejoined her earlier statement but has stated that though she has solemnized marriage with the applicant but since she is of tender age she wants to reside with her parents. During course of investigation, the Investigating Officer obtained a copy of the scholar register and transfer certificate of the prosecutrix wherein her date of birth is recorded as 18.9.2008. As such on the date of incident i.e. 1.4.2023 the prosecutrix was aged 14 years, 7 months and 17 days. In view of above, the Investigating Officer came to the conclusion that provisions of POCSO Act are also attracted. Ultimately, Investigating Officer submitted the charge-sheet against the applicant whereby applicant has been charge sheeted under Sections 363, 366, 376(3) IPC and 3/4 POCSO Act.
8. Learned counsel for applicant contends that applicant is innocent. Irrespective of fact that the applicant is named as well as the charge sheeted accused yet he is liable to be enlarged on bail. Referring to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. he submits that the prosecutrix is a willing and consenting party. She herself accompanied the applicant and therefore no offence under Section 363/366 IPC can be said to have been committed by applicant. He, therefore, submits that since the prosecutrix is a consenting party and no allegation of fraud and coercion has been made against applicant to delibrately dislodge her modesty, no offence under Section 376(3) IPC and Section 3/4 POCSO can be said to have been committed by the applicant. As per aforesaid statements of the prosecutrix, she is in love with the applicant and has subsequently solemnized marriage with the applicant. As a result, physical relations were maintained between the parties which was a natural consequence. It is thus urged that no criminality can be said to have been committed by applicant. 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 9.4.2023. As such he has undergone more that 3 months of incarceration. The Police report in terms of 173(2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against the applicant now stands crystallized. However up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, 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 cooperate with the trial.
9. Per contra, the learned A.G.A. has opposed the prayer for bail.He submits that since the applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. It is an undisputed fact that on the date of occurrence the prosecutrix was aged about 14 years, 7 months and 17 days As such, the consent of the prosecutrix, if any, is irrelevant. The prosecutrix in her statement under Section 164 Cr.P.C. has clearly stated that she does not wish to reside with the applicant because of her tender age. In view of above, it cannot be conclusively concluded that the prosecutrix had solemnized marriage with the applicant. The statement of the prosecutrix therefore appears to be tutored and therefore unworthy of reliance. Apart from the above, there is no evidence on record up to this stage regarding the marriage of the prosecutrix with the applicant. Attention of the Court was then invited to the judgment of the Supreme Court in X (minor) Vs. State of Jharkhand and another (2022) Live Law (SC) 194 and on basis thereof he submits that since the prosecutrix was below 16 years of age on the date of occurrence, her consent, if any, is wholly immaterial. It is thus urged that no ground has been made out to enlarge the applicant on bail.
10. When confronted with above, the learned counsel for applicant could not overcome the same.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and the submissions urged by the learned A.G.A. which could not be dislodged by the learned counsel for applicant, this Court does not find any good ground to enlarge the applicant on bail.
12. As a result present application fails and is liable to be dismissed.
13. It is, accordingly, dismissed.
Order Date :- 24.7.2023
Aiman
