Allahabad High Court
Mohd. Asif vs State Of U.P. And 3 Others on 2 February, 2024
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:18227
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51562 of 2023
Applicant :- Mohd. Asif
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Shashi Ranjan Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Ajay Bhanot,J.
Shri Suchit Tandon, learned AGA 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 this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 0174 of 2023 at Police Station Kundarki, District Moradabad under Section 376 D B, 506 I.P.C. and Section 5/6 POCSO Act. The applicant is in jail since 10.08.2023.
The bail application of the applicant was rejected by this Court on 05.10.2023.
The following arguments made by Shri Shashi Ranjan Srivastava, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Suchit Tandon, learned AGA 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 11 years of age 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) on the following grounds:
(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.
(ii) The victim in her statement under Section 161 and 164 Cr.P.C. has asserted that she is 11 years of age.
(iii) Medico-legal examination (not the age determination test) records that the victim is 11 years of age.
(iv) The medical report drawn up to determine the age of the victim opines that she is around 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 criteria 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.
4. The victim got married on 06.06.2023. The victim had relations with other persons as well. She became an expectant mother as a result of the union with one of her love interests.
5. The applicant has been nominated only to deflect attention from the conduct of the victim and to save her marriage.
6. The victim in her statements under Sections 161 and 164 Cr.P.C. has stated that the applicant and one Kabir enticed her into a physical relationship as a result of which she got pregnant.
7. More aggravated version was given by the victim in her statement under Section 164 Cr.P.C. only to save the failing prosecution case.
8. Material contradictions in the FIR, the statement of the victim under Sections 161 and 164 Cr.P.C. discredit the prosecution case.
9. The DNA report confirms that the applicant is not the biological father of the new born baby.
10. The victim was never confined or bound down in any manner. The victim was present at various public places but she failed to inform her parents or lodge any FIR in a timely manner.
11. The delay in lodgment of the F.I.R. in the facts of this case is fatal to the prosecution case.
12. The nikahnama of the victim depicts that she is 22 years of age.
13. Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.
14. The applicant does not have any criminal history apart from this case.
15. 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 her 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- Mohd. Asif 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 trial court while rejecting the bail application has relied pedantically on the information in the age determination report. The trial court failed to consider the margin of error in the age determination report which is recognized by judicial authorities. In this regard, the learned trial court ought to have considered the judgment rendered by this Court in Monish (supra) while determining the issue of age and deciding the bail application.
The District Judge to ensure that the judgment is duly circulated and complied by the trial courts while deciding the bail application.
A copy of this order be communicated to the learned trial judge through the learned District Judge, Moradabad by the Registrar (Compliance) by FAX.
Order Date :- 2.2.2024
Vandit
