Allahabad High Court
Shyam Singh @ Sachin Singh vs State Of U.P. Thru. Prin.Secy. ... on 28 July, 2023
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:49700
Court No. - 27
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9407 of 2023
Applicant :- Shyam Singh @ Sachin Singh
Opposite Party :- State Of U.P. Thru. Prin.Secy. Home
Counsel for Applicant :- Brijesh Kumar Singh,Sanjay Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Brij Raj Singh,J.
1. Heard learned counsel for applicant, Sri Onkar Nath Tiwari, learned counsel for the complainant O.P. No.2, Sri Rajesh Kumar Singh learned AGA-I for State and perused record.
2. Counter affidavit filed by the learned counsel for the O.P. No.2 is taken on record.
3. This bail application has been filed by the applicant for bail in case crime No.195 of 2023 under Section 363, 366, 376 IPC and 3/4 POCSO Act, PS Kotwali Ayodhya.
4. Learned counsel for the applicant has submitted that the brother of the prosecutrix lodged a report on 5.4.2023 in which he has mentioned that his sister was missing since 4.4.2023 and he expressed his doubt that she was being abducted by the applicant. After recovery of prosecutrix her statement under Section 164 was recorded and in her statement she has stated that she and the applicant are in love with each other and they had gone to Goa by flight. She remained there with the applicant in four respective hotels. She has stated that firstly, physical relation was established by the applicant out of force but later on she had given her consent for sexual intercourse. Learned counsel for the applicant has submitted that as per school record, the date of birth of the prosecutrix is 21.8.2005. Thus, she was 17 months, 7 months at the relevant time of occurrence. He has further submitted that the applicant is aged about 18 years at the relevant time and both were classmate. It is submitted that the applicant and the prosecutrix used to love together and it is a case of consent and rape has not been committed. He has further submitted that medical report does not support the prosecution case. He has submitted that the applicant is in Jail since 16.4.2023.
5. Learned counsel for the applicant has relied on the para-77 of the judgment dated 10.7.2023, of Supreme Court in the case of Ashik Ramjail Ansari.Vs. State of Maharashtra and another, 2023 SCC OnLine Bom 1399, which is quoted below:-
"77. In the wake of the clear case of consensual sex, emerging from the prosecution case, between a girl aged 17 years and 5 months and a man aged 25, merely because the statute provide punishment for an act of sexual indulgence, as the girl has not attained the age of maturity i.e. 18, when it can be specifcally inferred from her conduct that she was capable of understanding the consequences of her act, I am of the opinion that the learned Special Judge has erred in convicting the appellant for committing the offence of rape under Section 376 of IPC as well as the offences under Sections 4 and 6 of the POCSO Act and awarded him the sentence in the impugned judgment."
6. Learned counsel for the applicant has further relied on the para-13 of the judgment dated 21.6.2023 of High Court of Meghalaya in the case of Crl. Petition No.3 of 2023 (Shri John Franklin Shylla. Vs. State of Meghalaya and another, which is quoted below:-
"13. Though the alleged victim girl is a minor as admitted by her in her statement under Section 164 as well as in her deposition before the Court being about 16 years of age or so at that relevant point of time, this Court, looking into the physical and mental development of an adolescent of that age group, would consider it logical that such a person is capable of making conscious decision as regard his or her well-being as to the actual act of sexual intercourse. Prima facie, it appears that there is no mens rea involved."
7. Learned counsel for the complainant has submitted that the statement under Section 164 CrPC of the prosecutrix indicates that the rape has been committed against the prosecutrix and she was minor below the age of 18 years. Similarly, learned AGA on the basis of instructions received, has also opposed the bail and has submitted that statement of the prosecutrix under Section 164 CrPC indicates that it is not a case of consent and the rape was committed against minor girl, therefore, the bail is liable to be rejected.
8. Considering over all facts and circumstances of the case and the argument of consent, the aforesaid judgment relied by the learned counsel for the applicant, the statement of the prosecutrix under Section 164 CrPC and the argument of given consent is there, it is a fit case for bail.
9. Let the applicant, namely, Shyam Singh @ Sachin Singh 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 :- 28.7.2023
Rajneesh JR-PS)
