Allahabad High Court
Chauna @ Salim 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:54828
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4708 of 2024
Applicant :- Chauna @ Salim
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Sandeep Tripathi
Counsel for Opposite Party :- G.A.,Pawan Singh Pundir
Hon'ble Ajay Bhanot,J.
Matter is taken up in the revised call .
Shri Chandan Agrawal, 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. 61 of 2019 at Police Station-Sikhera District-Muzaffar Nagar under Sections 363, 366, 376, 504, 506 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 25.10.2023.
The bail application of the applicant was rejected by the learned trial court on 04.01.2024.
The following arguments made by Shri Sandeep Tripathi learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Pawan Singh Pundir, learned counsel for the informant and Shri Chandan Agrawal, learned AGA from the record, entitle the applicant for grant of bail:
1. 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.
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.
(iii) The victim in her statement under Section 161 Cr.P.C. has stated that she is 13 years of age while in the statement under Section 164 Cr.P.C., she stated that she is 20 years of age.
(iv) Medico-legal examination (not the age determination test) records that the victim is about 14 years of age.
(v). The medical report drawn up to determine the age of the victim opines that she is about 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.
3. The incident occurred on 23.04.2019 and the F.I.R. was got registered on 02.05.2019.
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 statement under Section 164 Cr.P.C. has admitted to intimacy with the applicant. The victim has also stated that she was being forced by her parents to marry another person against her wishes. She has further asserted that she eloped with the applicant and got married to him of her own volition. Two children were born in the wedlock of the applicant and the victim. No allegation of commission of rape has been made against the applicant in the aforesaid statement.
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 were made by the victim against the applicant in her statement under Section 161 Cr.P.C.at the behest of her parents only 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- Chauna @ Salim 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 failed to comply with the judgment rendered by this Court in Monish (supra) regarding the manner of consideration of age of the victim in bail applications filed by the accused persons under the POCSO Act.
A copy of this order as well as a copy of the judgment in Monish (supra) shall be provided to the learned District Judge, Muzaffar Nagar, 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
