Allahabad High Court
Vishal Soni vs State Of U.P. And 3 Others on 31 July, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:152791
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33273 of 2023
Applicant :- Vishal Soni
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Hari Narayan Singh
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Shri Chandan Agrawal, learned A.G.A. for the State contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served notices of the bail application upon the the victim as well as the CWC.
By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 48 of 2023 at Police Station- Harpur Budahat, District- Gorakhpur, under Sections 363, 366, 376 IPC, Section 5/6 POCSO Act. The applicant is in jail since 30.03.2023.
The bail application of the applicant was rejected by the learned trial court on 11.05.2023.
The following arguments made by Shri Hari Narayan Singh, learned counsel on behalf of the applicant,which could not be satisfactorily refuted by Shri Surendra Mohan Mishra, learned counsel for the informant and Shri Chandan Agrawal, learned AGA from the record, entitle the applicant for grant of bail:
1. The applicant has contested the minority of the victim as stated in the prosecution case.
2. The victim was wrongly shown as a minor of 15 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
3. The age of the victim is assailed on the following grounds in light of the judgment rendered by this Court in Criminal Misc. Bail Application No. 55026 of 2021 (Monish Vs State of U.P. and others).
(i). There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii). The age of the victim was incorrectly entered by her parents in the school records only to give her an advantage in life. School records depicting age of the victim as 16 years are unreliable.
(iii) The victim under in her statements under Sections 161 Cr.P.C. and 164 Cr.P.C. has stated that she is 17 years of age.
(iv). Medico-legal examination (not the age determination test) records that the victim is 17 years of age.
(v). The medical report drawn up to determine the age of the victim opines that she is 17 years of age.
Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.
4. The applicant and the victim were intimate.
5. The FIR is a result of parental opposition of the victim's family to the said relationship.
6. The victim in her statement under Section 164 Cr.P.C. has admitted to intimacy with the applicant. The victim has stated that she was ill treated by her parents and she eloped with the applicant and got married to him of her own volition. She has further asserted that she wants to continue stay with him. The two travelled to various public places including Gonda and Ludhiana.
7. The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.
8. No allegation of abduction, wrongful detention and commission of rape has been made by the victim against the applicant in her statements under Sections 161 Cr.P.C. and Section 164 Cr.P.C.
9. Major inconsistencies in the statements of the victim under Sections 161 Cr.P.C. and Section 164 Cr.P.C. as well as the recitals in the F.I.R. discredit the prosecution case.
10. Criminal proceedings were lodged at the behest of her parents only to deflect attention from the conduct of the victim and to save the failing prosecution.
11. Medical evidence to corroborate the commission of rape by the applicant with the victim has been produced by the prosecution.
12. The applicant does not have any criminal history apart from this case.
13. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Vishal Soni 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 below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
Order Date :- 31.7.2023
Dhananjai
