Aaqil @ Lota vs State Of U.P. And 3 Others
2023 Latest Caselaw 27993 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:196380
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38007 of 2023
 

 
Applicant :- Aaqil @ Lota
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Syed Ahmed Faizan,Syed Mohd Taqi Abdi
 
Counsel for Opposite Party :- G.A.,Amit Rai
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Jain Abbas, Advocate, holding brief of Mr. Syed Ahmed Faizan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Amit Pratap Singh, Advocate, holding brief of Mr. Amit Rai, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Aaqil @ Lota, seeking his enlargement on bail in Case Crime No. 229 of 2023, under Sections 328, 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station-Budhana, District-Muzaffar Nagar during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 23.05.2023, a delayed FIR dated 24.05.2023 was lodged by first informant-Ahsan (brother of the prosecutrix) and was registered as Case Crime No. 229 of 2023, under Section 363 IPC, Police Station-Budhana, District-Muzaffar Nagar. In the aforesaid FIR, applicant-Aaqil @ Lota and Sohail have been nominated as named accused.

5. The gravamen of the allegations made in the FIR is to the effect that named accused are alleged to have enticed away/kidnapped the sister of the first informant namely X aged about 15 years.

6. 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 25.05.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 44 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, she has stated that she herself accompanied the applicant and while going with the applicant, she also took certain gold and silver jewelery kept in the house. The prosecutrix has however stated that subsequently, the applicant-Aaqil @ Lota administered her some stupefying substance mixed in her cold drink and thereafter, dislodged her modesty. Thereafter, the prosecutrix was requested for her internal medical examniation. The prosecutrix in her statement before the Doctor, who medically examined her, has rejoined her previous statement under Section 161 Cr.P.C. The Doctor, who medically examined the prosecutrix, however, did not find any injury on her body so as to denote commission of deliberate or forceful sexual assault. However, with regard to the private part of the prosecutrix, the Doctor, who examined the prosecutrix has opined as follows:-

"Hymen Perineum - Intact ??? ??? ???? ?? ! ?????? thk ??! Redness (light) Swelling ?????? thk ??!

7. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 45 of the paper book. The prosecutrix in her aforesaid statement has reiterated her previous statement that her modesty was dislodged by the applicant-Aaqil @ Lota.

8. During course of investigation, Investigating Officer recovered the transfer certificate of the prosecutrix wherein her date of birth has been mentioned as 01.01.2008. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 21.07.2023 whereby applicant-Aaqil @ Lota has been charge sheeted under Sections 328, 363, 366, 376 IPC and Sections 3/4 POCSO Act whereas co-accused, Suhel has been charge sheeted under Sections 363 IPC and Sections 16/17 POCSO Act.

9. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Referring to the medical opinion regarding the age of the prosecutrix, he submits that as per the medical opinion submitted regarding the age of the prosecutrix in compliance of the order dated 20.09.2023 passed by this Court, the prosecutrix is said to be aged about 17 to 18 years. He, therefore, contends that since the prosecutrix is a consenting party, therefore, no offence is alleged can be said to have been committed by the applicant.

10. 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 27.05.2023. As such, he has undergone more than 4 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. Apart from above, it is also alleged that present case is a case of false implication, therefore, 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 co-operate with the trial.

11. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. Attention of the Court was invited to the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. With reference to above, they submit that since the date of birth of the prosecutrix recorded in the institution first attended by her is now available and there being no other evidence to doubt the credibility of the same, therefore, the age of the prosecutrix has to be determined as per the said date of birth. The age of the prosecutrix recorded in the institution first attended by her is 01.01.2008. The occurrence giving rise to the present criminal proceedings is alleged to have occurred on 23.05.2023. As such, the prosecutrix was below 16 years of age on the date of occurrence. Therefore, the consent, if any, of the prosecutrix is wholly immaterial. Even though, the medical opinion clearly shows that no signs were found on the body of the prosecutrix so as to denote commission of deliberate and forceful sexual assault. However, the opinion expressed by the Doctor with regard to the private part of the prosecutrix clearly belies the innocence of the present applicant. On the above premise and also the judgment of the Supreme Court in X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194, it is thus urged by the learned A.G.A. that, no sympathy be shown by this Court in favour of applicant.

12. When confronted with above, the learned counsel for applicant could not overcome the same.

13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and 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 with reference to the record at this stage, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.

14. As a result, present application for bail fails and is liable to be rejected.

15. It is, accordingly, rejected.

Order Date :- 11.10.2023

Vinay