Chhotu v. State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Another

This criminal appeal U/S 374 (2) Cr.P.C./415 BNSS has been filed by the appellant against the judgment learned and order dated 03.05.2024 passed by Additional District & Sessions Judge, Court No.12/Special Judge POCSO Act, Unnao, in Sessions Trial No. 64/2016 arising out of Case Crime No. 69 of 2016, Police Station- Fatehpur Chaurasi, District- Unnao convicting and sentencing the appellant under Section 363 rigorous imprisonment with fine of Rs. 10,000/- and under Section 8 of POCSO Act for three years rigorous imprisonment and fine of Rs. 10,000/-. four years I.P.C. Order in bail application By means of the bail application the appellant has prayed to be enlarged on bail during the pendency of the appeal in Sessions Trial No. 64/2016 arising out of Case Crime No. 69 of 2016, Police Station- Fatehpur Chaurasi, District- Unnao. 2 CRLA No. 1642 of 2024 The appellant is in jail since 03.05.2024. Sri Prashant Vikram Singh, learned counsel for the appellant submits that the following grounds and the material evidences which were neglected consideration or not properly appreciated by the learned trial court in accordance with law could not be satisfactorily refuted by learned AGA from the record and entitle the appellant to be enlarged on interim bail:

1. The appellant has been convicted and sentenced for a period of four years rigorous imprisonment under Section 363 I.P.C. with fine of Rs. 10,000/- and under Section 8 of POCSO Act for three years rigorous imprisonment and fine of Rs. 10,000/- by the learned trial court.

2. The victim disappeared on 29.03.2016. No missing report was got registered. The FIR was got registered on 02.04.2016.

3. The FIR was lodged after due deliberation in order to falsely implicate the appellant and deflect attention from the victim's conduct. No satisfactory explanation for the delay in lodgment of the FIR or failure to lodge the missing report was disclosed during the prosecution evidence by the first informant who is the father of the victim. The delay in lodgment of the FIR is fatal to the prosecution case in the facts of the case.

4. The appellant and the victim were intimate. The victim eloped with the appellant of her own free will.

5. The victim in her testimony before the trial court had deposed that she had eloped with the appellant. The victim also testified that she travelled to various places including Unnao, Sonipat and Panipat. According to 3 CRLA No. 1642 of 2024 the said deposition the victim travelled by public transport and was present at various crowded places.

6. No allegation of commission of rape has been made by the victim against the appellant in the statement under Section 164 Cr.P.C.

7. During her deposition the victim could not reconcile the contradictions between her testimony before the trial court and her statement under Section 164 CrPC. The credit of the victim as a prosecution witness was impeached during the trial.

8. The victim was not confined or bound down. The victim never resisted the appellant nor did she raise an alarm despite ample opportunity. The conduct of the victim as borne out from the prosecution evidence shows that she was a consenting party.

9. The learned trial court erred in law by believing the testimony of the victim who was a discredited witness and overlooking the fact that she was a consenting party. The findings of guilt rendered by the learned trial court are perverse.

10. Medical evidence tendered by the prosecution does not establish commission of rape or forceful assault by the appellant with the victim.

11. The PW-2, who was the headmistress produced the school register depicting the date of birth of the victim in record. However, under cross examination the PW-2 could not state the basis on which the entry regarding date of birth was made in the school register.

12. The prosecution failed to prove the date of birth entered in the school record produced as prosecution evidence as per law. Moreover, the said school record 4 CRLA No. 1642 of 2024 was not the date of birth certificate issued by the school under section 94 of the Juvenile Justice Act. The trial court perversely upheld the aforesaid document to tender the age of the victim. The finding of the trial court in regard to the victim's age is contrary to Section 35 of the Evidence Act.

13. The trial court under a misconception of law perversely neglected to consider the age of the victim determined by the medical practitioner under Section 27 read with Section 164-A CrPC which opines that the victim is 19 years of age. The failure of the trial court to consider judgement. the said medical report vitiates

14. The appellant has explained his criminal history. It is also contended that the appellant has become a soft target and a convenient scapegoat for the police authorities who nominated him in a number of false cases to burnish their professional credentials. The said cases do not have any bearing on the instant bail application.

15. The appellant has sanguine hope of succeeding in the appeal.

16. There is no likelihood of the appeal being heard in the near future.

17. Inordinate delay in hearing of the appeal will led to an indefinite detention of the appellant. In absence of possibility of an early hearing of the appeal the appellant could well serve out his sentence and in that event the appeal would become infructuous.

18. The appellant is not a flight risk. The appellant being a law abiding citizen had always cooperated with 5 CRLA No. 1642 of 2024 the investigation and joined the trial proceedings. The appellant is not likely to reoffend. In this wake and without expressing any opinion on the merits of the case, I am of the view that the appellant is entitled to be enlarged on interim bail. Let the appellant-Chhotu be released on interim 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 realization of the fine shall remain stayed. judgement The determination of age of victim under the POCSO Act. reserved on issue of Connect with Criminal Appeal No. 1570 of 2023 (Teni @ Ramjan Ali @ Ibrahim Vs. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.) September 12, 2025 Vandit (Ajay Bhanot,J.)

This criminal appeal U/S 374 (2) Cr.P.C./415 BNSS has been filed by the appellant against the judgment learned and order dated 03.05.2024 passed by Additional District & Sessions Judge, Court No.12/Special Judge POCSO Act, Unnao, in Sessions Trial No. 64/2016 arising out of Case Crime No. 69 of 2016, Police Station- Fatehpur Chaurasi, District- Unnao convicting and sentencing the appellant under Section 363 rigorous imprisonment with fine of Rs. 10,000/- and under Section 8 of POCSO Act for three years rigorous imprisonment and fine of Rs. 10,000/-. four years I.P.C. Order in bail application By means of the bail application the appellant has prayed to be enlarged on bail during the pendency of the appeal in Sessions Trial No. 64/2016 arising out of Case Crime No. 69 of 2016, Police Station- Fatehpur Chaurasi, District- Unnao. 2 CRLA No. 1642 of 2024 The appellant is in jail since 03.05.2024. Sri Prashant Vikram Singh, learned counsel for the appellant submits that the following grounds and the material evidences which were neglected consideration or not properly appreciated by the learned trial court in accordance with law could not be satisfactorily refuted by learned AGA from the record and entitle the appellant to be enlarged on interim bail:

1. The appellant has been convicted and sentenced for a period of four years rigorous imprisonment under Section 363 I.P.C. with fine of Rs. 10,000/- and under Section 8 of POCSO Act for three years rigorous imprisonment and fine of Rs. 10,000/- by the learned trial court.

2. The victim disappeared on 29.03.2016. No missing report was got registered. The FIR was got registered on 02.04.2016.

3. The FIR was lodged after due deliberation in order to falsely implicate the appellant and deflect attention from the victim's conduct. No satisfactory explanation for the delay in lodgment of the FIR or failure to lodge the missing report was disclosed during the prosecution evidence by the first informant who is the father of the victim. The delay in lodgment of the FIR is fatal to the prosecution case in the facts of the case.

4. The appellant and the victim were intimate. The victim eloped with the appellant of her own free will.

5. The victim in her testimony before the trial court had deposed that she had eloped with the appellant. The victim also testified that she travelled to various places including Unnao, Sonipat and Panipat. According to 3 CRLA No. 1642 of 2024 the said deposition the victim travelled by public transport and was present at various crowded places.

6. No allegation of commission of rape has been made by the victim against the appellant in the statement under Section 164 Cr.P.C.

7. During her deposition the victim could not reconcile the contradictions between her testimony before the trial court and her statement under Section 164 CrPC. The credit of the victim as a prosecution witness was impeached during the trial.

8. The victim was not confined or bound down. The victim never resisted the appellant nor did she raise an alarm despite ample opportunity. The conduct of the victim as borne out from the prosecution evidence shows that she was a consenting party.

9. The learned trial court erred in law by believing the testimony of the victim who was a discredited witness and overlooking the fact that she was a consenting party. The findings of guilt rendered by the learned trial court are perverse.

10. Medical evidence tendered by the prosecution does not establish commission of rape or forceful assault by the appellant with the victim.

11. The PW-2, who was the headmistress produced the school register depicting the date of birth of the victim in record. However, under cross examination the PW-2 could not state the basis on which the entry regarding date of birth was made in the school register.

12. The prosecution failed to prove the date of birth entered in the school record produced as prosecution evidence as per law. Moreover, the said school record 4 CRLA No. 1642 of 2024 was not the date of birth certificate issued by the school under section 94 of the Juvenile Justice Act. The trial court perversely upheld the aforesaid document to tender the age of the victim. The finding of the trial court in regard to the victim's age is contrary to Section 35 of the Evidence Act.

13. The trial court under a misconception of law perversely neglected to consider the age of the victim determined by the medical practitioner under Section 27 read with Section 164-A CrPC which opines that the victim is 19 years of age. The failure of the trial court to consider judgement. the said medical report vitiates

14. The appellant has explained his criminal history. It is also contended that the appellant has become a soft target and a convenient scapegoat for the police authorities who nominated him in a number of false cases to burnish their professional credentials. The said cases do not have any bearing on the instant bail application.

15. The appellant has sanguine hope of succeeding in the appeal.

16. There is no likelihood of the appeal being heard in the near future.

17. Inordinate delay in hearing of the appeal will led to an indefinite detention of the appellant. In absence of possibility of an early hearing of the appeal the appellant could well serve out his sentence and in that event the appeal would become infructuous.

18. The appellant is not a flight risk. The appellant being a law abiding citizen had always cooperated with 5 CRLA No. 1642 of 2024 the investigation and joined the trial proceedings. The appellant is not likely to reoffend. In this wake and without expressing any opinion on the merits of the case, I am of the view that the appellant is entitled to be enlarged on interim bail. Let the appellant-Chhotu be released on interim 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 realization of the fine shall remain stayed. judgement The determination of age of victim under the POCSO Act. reserved on issue of Connect with Criminal Appeal No. 1570 of 2023 (Teni @ Ramjan Ali @ Ibrahim Vs. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.) September 12, 2025 Vandit (Ajay Bhanot,J.)