Allahabad High Court
Pappu @ Satish vs State Of U.P.And 3 Others on 3 October, 2023
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:189147
Court No. - 77
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36122 of 2023
Applicant :- Pappu @ Satish
Opposite Party :- State Of U.P.And 3 Others
Counsel for Applicant :- Abhilasha Singh,Ashutosh Yadav,Shyam Lal
Counsel for Opposite Party :- G.A.,Ajay Kumar Pal
Hon'ble Mrs. Renu Agarwal,J.
1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
2. Vakalatnama has been filed by learned counsel for opposite party No. 2, however there is no representation on behalf of opposite party No. 2.
3. The present first bail application has been filed on behalf of the applicant in Case Crime No. 221 of 2023 under Sections 354, 504 I.P.C. and Section 7/8 POCSO Act Police Station Gunnaur, District Sambhal with the prayer to enlarge him on bail.
4. Learned counsel for the accused-applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to malafide intentions. Allegations as per the F.I.R. is that accused-applicant on 11.06.2023 at about 1:00 p.m. outraged that modesty of informant's daughter aged about 14 years. It is submitted that no such incident as narrated in the F.I.R. ever took place and allegations have been concocted altogether. It is further submitted that manner in which the modesty of the victim was outraged is not disclosed and on medical examination no external injury has been found on the person of the victim. It is contended that the statement of victim has been signed by her and as such hit by Section 162(1) Cr.P.C. and not admissible in evidence. It is next contended that F.I.R. has been lodged after an inordinate delay and delay is not been properly explained. Neither any staff of patient of the clinic has been examined by the I.O. and, therefore, there is no chance of tampering with evidence. Applicant is languishing in jail since 19.06.2023 without any criminal antecedents apart from this case and if he is granted the liberty of bail he will not misuse the same and he is ready to furnish his sufficient sureties, bonds and personal bonds and shall co-operate in the trial.
5. On the other hand, learned AGA has opposed the prayer of bail and submitted that applicant is a doctor and he misused the fiduciary relationship between the patient and doctor and he molested the victim who is a minor aged about 14 years as per the F.I.R. and there fore, the applicant does not deserve the liberty of bail.
6. I have heard the rival submissions advanced on behalf of the parties and perused the materials brought on record. As per the medical report, no external injury is found on the person of the victim, however, statement of victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. is corroborated with the prosecution version. Learned AGA for the State submitted that victim is 14 years old and as per school leaving certificate, her date of birth is 01.02.2011 on the contrary, learned counsel for the applicant stated that school leaving certificate is not admissible in evidence and relied upon a judgment passed by Hon'ble Supreme Court in case of P. Yuvaprakash Vs. State Rep. By Inspector of Police reported in 2023 LiveLaw (SC) 538 in which the Hon'ble Apex Court has held that "concededly, only a transfer certificate and not the date of birth certificate or matriculation or equivalent certificate was considered Ex.C1 i.e., the school transfer certificate showed the date of birth of the victim as 11.07.1997. Significantly, the transfer certificate was produced not by the prosecution but instead by the court summoned the witness, i.e., CW-1. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not have been fallen back upon a document which it had never relied upon. Furthermore, DW-3, the concerned Revenue Official (Deputy Tahsildar) had stated on oath that the records for the year 1997 in respect to the births and deaths were missing. Since it did not answer to the description of any class of documents mentioned in Section 94(2)(i) as it was a mere transfer certificate, ExC-1 could not have been relied upon to hold that M was below 18 years at the time of commission of the offence." Learned counsel for the applicant submitted that prosecution did not produce the documents provided under Section 94(2)(iii) of the Juvenile Justice Act neither the birth certificate of victim is produced issued by Municipal Corporate or Panchayat, hence, there is no proof that victim was a minor.
7. From the perusal of record it transpires that in F.I.R., age of victim is mentioned as 14 years and the School leaving certificate discloses the date of birth of victim as 01.02.2011 which is corroborated by the statement of victim recorded under Section 164 Cr.P.C. and other witnesses recorded during the investigation, accused did not produce any document contrary to the school leaving certificate. There is fiduciary relationship between the victim and the doctor but deliberately sent victim's brother to bring porridge. Prosecution version is corroborated by the statement of victim recorded under Section 161 and 164 Cr.P.C., hence, looking into the gravity of offence, applicant is not entitled to be enlarged on bail at this stage.
8. In view of the above, application for bail is hereby rejected at this stage.
(Renu Agarwal,J.)
Order Date :- 3.10.2023
Karan
