High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2280 of 2022 Applicant :- Amit Kumar Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Shiv Sharan Tripathi Counsel for Opposite Party :- G.A.,Ashutosh Kumar Pandey Hon'ble Rajeev Misra,J. 1. Heard Mr. Shiv Sharan Tripathi, the learned counsel for applicant, learned AGA for State and Mr. Ashutosh Kumar Pandey, the learned counsel for first informant. 2. This application for bail has been filed by applicant, Amit Kumar seeking his enlargement on bail in Case Crime No.113 of 2021, under Sections 363, 366, 376 IPC and Sections 3/4 POCSO Act, Police Station Pisawa, District Aligarh, during pendency of trial. 3. Perused the record. 4. It transpires from record that in respect of an incident which
Legal Reasoning
is alleged to have occurred on 29.08.2021 a delayed FIR dated 03.09.2021 was lodged by first informant, Smt. Kamlesh Devi (mother of prosecutrix) which was registered as Case Crime No.0113 of 2021, under Sections 363, 366 IPC, Police Station Pisawa, District Aligarh. In the aforesaid FIR two persons namely, Amit Kumar and Rinku Sharma have been nominated as named accused. 5. In brief, according to the prosecution story as unfolded in the FIR it is alleged that named accused have enticed away the minor daughter of first informant namely, Kumari Durgesh aged about 15 years. 6. After registration of the aforementioned FIR, investigating officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 06.09.2021. Thereafter statement of the prosecutrix was recorded by investigating officer under Section 161 CrPC. Same is on record as annexure-3 to the affidavit filed in support of the bail application. The prosecutrix in her aforesaid statement has not supported the prosecution story. Thereafter, the prosecutrix was requested for her internal medical examination which was refused by her. Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC wherein she has not only reiterated her earlier statement under Section 161 CrPC but has improved upon the same by stating that she was in love with Amit and she accompanied him to Noida herself. 7. Thereafter during course of investigation, investigating officer further recovered the High School Certificate of the prosecutrix which is on record as annexure-3 to the supplementary affidavit. In the aforesaid certificate the date of birth of the prosecutrix has been mentioned as 05.04.2005. The incident in question has occurred on 29.08.2021. As such the prosecutrix was aged about 16 years and 4 months on the date of occurrence. Ultimately, the investigating officer submitted the chargesheet dated 19.10.2021 whereby applicant has been chargesheeted under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act.
Legal Reasoning
8. Learned counsel for applicant contends that though applicant is named as well as chargesheeted accused but he is innocent. Applicant has been falsely implicated in aforementioned case crime number. Allegations made in FIR are false and concocted. As such, he is being falsely prosecuted in aforementioned case crime number. It is then contended that as per the High School Certificate of the prosecutrix her date of birth is 05.04.2005. The occurrence giving rise to present application for bail is alleged to have occurred on 29.08.2021. As such, on the date of occurrence the prosecutrix was aged about 16 years and 4 months. He, therefore, submits that in view of above, the provisions of POCSO Act shall not be applicable in the present case. It is next contended that the prosecutrix in her statements under Sections 161/164 CrPC has not supported the prosecution story as unfolded in the FIR. Prosecutrix is a consenting party. As such, the ingredients of Sections 363, 366 IPC are not satisfied against the applicant in the present case. It is lastly submitted that the medical evidence does not support the prosecution story. Placing reliance upon the judgment of the Supreme Court in Vineet Kumar Vs. State of UP, (2017) 13 SCC 369 he submits that in the absence of medical evidence supporting the prosecution story no conviction of applicant is possible in this case under Section 376 IPC. It is lastly contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 13.10.2021. As such, he has undergone more than five months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. He further submits that since chargesheet has already been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant stands crystalized. As such, custodial arrest of applicant is not absolutely necessary during the pendency of trial. He, therefore, contends applicant is liable to be enlarged on bail. 9. Per contra, the learned AGA and the learned counsel for first informant have opposed this application for bail. They submit that since applicant is a named as well as chargesheeted accused, he does not deserve any sympathy of this Court. However, they could not dispute the factual and legal submissions urged by the learned counsel for applicant. 10. Having heard the learned counsel for applicant, the learned AGA for State, the learned counsel for first informant, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, applicant has made out a case for bail. 11. Accordingly, the bail application is allowed. 12. Let the applicant, Amit Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) Applicant will not tamper with prosecution evidence. (ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 13. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison. Order Date :- 24.3.2022/Shahroz Digitally signed by SHAHROJ ALAM Date: 2022.03.28 17:31:17 IST Reason: Location: High Court of Judicature at Allahabad