Allahabad High Court
Ompal Yadav vs State Of U.P. And 3 Others on 27 July, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:150810
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30520 of 2023
Applicant :- Ompal Yadav
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Pankaj Satsangi
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Pankaj Satsangi, 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-Ompal Yadav seeking his enlargement on bail in Case Crime No. 178 of 2022, under Section 376 IPC and Sections 3/4 POCSO Act, Police Station-Menhnajpur, District-Azamgarh during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of present application for bail has already been served upon first informant-opposite party 2 on 25.06.2023. 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 25.12.2022, a delayed FIR dated 27.12.2022 was lodged by first informant-Smt. Rita (Mother of the prosecutrix) and was registered as Case Crime No. 178 of 2022, under Section 363 IPC, Police Station-Menhnajpur, District-Azamgarh. In the aforesaid FIR, an unknown person has been arraigned as an accused.
6. The gravamen of the allegations made in the FIR to the effect that daughter of the first informant namely - X aged about 14 years has gone missing from 05.12.2022.
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 was recovered on 24.01.2023. Thereafter her statement was recorded under Section 161 Cr.P.C., which is on record at page 25 of the paper book. The prosecutrix in her aforesaid statement has clearly implicated 2 persons namely Lokpriya Yadav and Ompal Yadav i.e. applicant herein for dislodging her modesty on the false promise of marriage. The allegation of false promise of marriage has been made against Ompal Yadav. Thereafter, the prosecutrix was medically examined. The prosecutrix in her statement before the Doctor, who medically examined her, has departed her earlier statement recorded under Section 161 Cr.P.C. However, the Doctor who examined the prosecutrix did not find any injury on her body so as to denote commission of sexual assault. With regard to the private part of the prosecutrix, the Doctor has opined as follows;
"old torn and healed"
8. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 44 of the paper book. The proscutrix in her aforesaid statement has rejoined her earlier statement under Section 161 Cr.P.C. by stating that initially physical relations were maintained with the prosecutrix by Lokpriya Yadav. Thereafter, his nephew Ompal Yadav maintained physical relations with the prosecutrix. The modesty of the prosecutrix was repeatedly and continuously dislodged on the false assumption that she is the wife of named accused-applicant Ompal Yadav. During course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. who have supported the FIR. Ultimately, the Investigating Officer submitted the charge sheet against applicant Ompal Yadav and co-accused Lokpriya Yadav.
9. At the very outset, the learned A.G.A. contends that the prosecutrix is below 16 years of age, therefore, her consent, if any, is wholly immaterial. Irrespective of the fact that the medical evidence does not support the prosecution story, the prosecutrix in her statements under Sections 161/164 Cr.P.C. has clearly implicated the applicant and co-accused Lokpriya Yadav in the crime in question. Placing reliance upon the judgment of the Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74, he submits that the prosecution of the accused for an offence of rape and sexual assault can be maintained even in the absence of medical evidence and on the sole statement of the prosecutrix which as noted above, are clear, consistent and categorical. Up to this stage, noting has been brought on record to show that the prosecutrix is above 16 years of age. Reference in this regard, the judgment of the Supreme Court in X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194. On the above premise, he contends that no indulgence be granted by this Court in faovur of applicant.
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, complicity of applicant, accusations made coupled with the fact that the submissions urged by the learned A.G.A. in opposition to the present application for bail, 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 for bail fails and is liable to be rejected.
13. It is accordingly rejected.
Order Date :- 27.7.2023
Vinay
