Allahabad High Court
Abhimanyu Alias Abhimanyu ... vs State Of U.P. And 3 Others on 19 September, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:181177
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38316 of 2023
Applicant :- Abhimanyu Alias Abhimanyu Kushwaha Alias Manu
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Prakash Sharma
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Shri Paritosh Kumar Malviya, learned AGA 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 the bail application upon the victim/legal guardian as well as upon the CWC.
By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.799 of 2020 at Police Station-Kotwali Deoria, District-Deoria under Sections 363, 376 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 29.01.2023.
The bail application of the applicant was rejected by the learned trial court on 03.07.2023.
The following arguments made by Shri Prakash Sharma, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Paritosh Kumar Malviya, learned AGA-I from the record, entitle the applicant for grant of bail:
1. Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.
2. The victim was wrongly shown as a minor of 13 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. Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The victim under in her statements under Sections 161 Cr.P.C. and under Section 164 Cr.P.C. has stated that she is 19 years of age.
(iii) The medical report to determine the age of the victim opines that she is 18 years of age. The victim is in fact a major.
4. The delay of 7 days in lodgment of the F.I.R. is fatal to the prosecution case.
5. The victim and the applicant were intimate.
6. The F.I.R. is the result of opposition of the victim's family to the said relationship.
7. The victim in her statement under Section 164 Cr.P.C. has admitted to intimacy with the applicant. She has further asserted that she eloped with the applicant and has got married to him of her own volition. The two started residing together as a married couple in Delhi. One child was born in the wedlock. The baby is now four months old.
8. No allegation of abduction, wrongful detention and commission of rape has been made by the victim against the applicant in her statement under Section 161 Cr.P.C.
9. The victim voluntarily accompanied with the applicant to various places. She was never confined or bound down. She never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.
10. Medical evidence to corroborate the commission of rape by the applicant with the victim has not been produced by the prosecution.
11. The applicant does not have any criminal history apart from this case.
12. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court 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-Abhimanyu Alias Abhimanyu Kushwaha Alias Manu 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.
The learned trial court while rejecting the bail application of the applicant neglected to consider the ossification test determining the age of the victim which clearly records that she is major. The learned trial court observed that the victim is less than 18 years of age. The learned trial court has acted in contravention of the law laid down by this Court in the case of Monish (supra) wherein it was held that the courts are liable to consider the various documents including the medical report/ossification report while determining the age of the victim for the purposes of bail application. The said documents were liable to be considered in light of the law laid down by this Court in Monish (supra).
A copy of this order be sent to the learned District Judge, Deoria by the Registrar (Compliance) to ensure that the judgment of this Court in Monish (supra) is duly complied with while considering the bail applications of the accused persons under the POCSO Act.
Order Date :- 19.9.2023
Ashish Tripathi
