Allahabad High Court
Pinku vs State Of Up And 3 Others on 1 April, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:54966
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4577 of 2024
Applicant :- Pinku
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Bharat Singh
Counsel for Opposite Party :- Avanish Tripathi,G.A.
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call .
Shri Shrawan Kumar Dubey, 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. 453 of 2023 at Police Station-Dataganj District-Badaun under Sections 363, 376 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 09.10.2023.
The bail application of the applicant was rejected by the learned trial court on 26.10.2023.
The following arguments made by Shri Bharat Singh, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Avanish Tripathi, learned counsel for the first informant and Shri Shrawan Kumar Dubey, learned AGA from the record, entitle the applicant for grant of bail:
1. The victim was wrongly shown as a minor of 16 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.
2. The age of the victim set out in the prosecution case is refuted 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 age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 16 years are unreliable.
(iii) The victim in her statement under Section 164 Cr.P.C. has stated that she is 16 years of age.
(iv) The medical report drawn up to determine the age of the victim opines that she is 18 years of age. The victim is in fact a major.
3.The incident occurred on 20.09.2023 and the F.I.R. was got lodged on 26.09.2023.
4. Delay in lodgement of the F.I.R. in the facts of this case 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 with the applicant.
7. The victim in her statements under Sections 161 Cr.P.C. and 164 Cr.P.C. has asserted that she voluntarily eloped with the applicant on account of pressure being exerted by her family members to end her relationship with the applicant. She has further stated that she stayed with the applicant at Budaun in a rented accommodation and from thereon they went by bus to Noida and stayed there for about 12 days. The victim further claims that she was forcibly tied up with rope and driven away on a motorcycle by the applicant and co-accused. This happened at a busy market place. However, there is no independent witness to the incident. Version of the victim is not credible and is liable to be disbelieved as it is not possible to drive a motorcycle in a manner if one of the three persons on the motorcycle resists the movement of the vehicle.
8. The victim was never confined or bound down in any manner. The victim was present at various public places. She did not raise an alarm nor did she resist the applicant. Her conduct shows that she was a consenting party.
9. False and aggravated allegations have been made by the victim in her statements under Sections 161 Cr.P.C. and 164 Cr.P.C. at the behest of her parents to deflect attention from her conduct and to save the failing prosecution case.
10. Major inconsistencies in the F.I.R. statements of the victim under Sections 161 Cr.P.P. and 164 Cr.P.C. discredit the prosecution case.
11. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.
12. Prosecution evidence does not connect the applicant with the offence.
13. The applicant does not have any criminal history apart from the instant case.
14. 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- Pinku 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.
Before parting some observations have to be made in the facts of this case. The learned trial court has rejected the bail application of the applicant by considering the age of the victim as depicted in the school records. The age of the victim as opined in the medical report/ossification test scientifically drawn up to determine her age has been neglected from consideration. The said report clearly opines that the victim is 18 years of age. The report was liable to be considered by the learned trial court in light of the judgement rendered by this Court in Monish (supra).
A copy of this order as well as a copy of the judgment in Monish (supra) shall be provided to the learned District Judge, Badaun, to ensure that the learned trial courts are guided by the law laid down.
It is clarified that the above observations shall not be construed adversely against any judicial officer.
Order Date :- 1.4.2024
Dhananjai
