High Court · 2025

2. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Garun Pal Singh, learned counsel for the applicant and Sri Harsh Vardhan Gupta, learned counsel for the informant as well as Sri R.P. Patel, learned State Law Officer and perused the record.

3. Supplementary affidavit filed by the learned counsel for the applicant today is taken on record.

4. Applicant seeks bail in Case Crime No. 306 of 2024, under Sections 127(2), 64, 351(2) BNS and Section 3/4(1) of POCSO Act, Police Station Kotwali Mursan, District Hathras, during the pendency of trial. PROSECUTION STORY:

5. The uncle of the victim has instituted the FIR stating that his niece had gone to ease herself out and was not traceable, as such he went to search her and she was found coming to her house wailing and the applicant was following her and subsequently ran away from the place of occurrence seeing the informant on 11.11.2024 at about 00: 30 a.m. ARGUMENTS ON BEHALF OF APPLICANT :

6. The applicant has been falsely implicated in the present case and he has nothing to do with the said offence.

7. The FIR is delayed by about 16 hours and there is no explanation of the said delay caused.

8. The victim in her statement has categorically stated that her house has no bathroom or toilet.

9. The certificate issued by the Gram Pradhan of the village indicates that there was a toilet in the house of the victim which was constructed under the Government Scheme in the year 2015, as such the victim is a consenting party.

10. Even the statement of the victim recorded under section 183 BNSS stands contradicted by the fact that the victim has stated that she was forcibly taken by the applicant by gagging her mouth to his uncle's house and had raped her and her uncle had reached to the place of occurrence and retrieved her while the FIR says that the informant had seen the applicant coming to his house and was followed by the applicant.

11. The victim by her physical appearance seems to be major, although as per ossification test report, the age of the victim has come up to be 15-16 years.

12. There is no medical corroboration of the said incident as the victim has not sustained any injury on her internal or external body organs.

13. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.

14. There is no criminal history of the applicant. The applicant is languishing in jail since 20.11.2024. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail. ARGUMENTS ON BEHALF OF INFORMANT :

15. The bail application has been opposed on the ground that the applicant is an influential person of the locality and the father of the victim is a simple truck driver and the informant who happens to be the uncle of the victim, is a vegetable seller on the roadside.

16. The victim has sustained injury on her neck as is evident from the medical report at the C.H.C. on 11.11.2024 at about 3:45 p.m. The said injury is abrasion 1 X 1 c.m. on the left side of the neck, 4 c.m. below the left ear irregular in shape and red in colour. The said injury was found fresh and caused by hard and blunt object. Even the doctor conducting internal and external examination of the victim, has acted in collusion with the applicant as he has not mentioned any external injury observed at C.H.C. Mursan, Hathras. CONCLUSION:

17. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs Prabhakar Rajaram Kharote and others AIR 1980 SC 785, this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.

18. As per ossification test report, the age of the victim is 15 to 16 years and a leverage of two years may be granted to the applicant on the upper side in the light of the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

19. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.

20. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.

21. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that "bail is a rule and jail is an exception".

22. Learned State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

23. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned State Law Officer.

24. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, taking into consideration the fact that the FIR is delayed by about 16 hours coupled by the fact that the said injury is minor abrasion on the neck and the circumstances as narrated by the victim which stands contradictory from the fact that there was toilet constructed in the house of the victim and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

25. Let the applicant- Harendra involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. (i) The applicant shall not tamper with evidence. (ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

26. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

27. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 12.3.2025 Sumit S (Justice Krishan Pahal) SUMIT SRIVASTAVA High Court of Judicature at Allahabad

2. Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Garun Pal Singh, learned counsel for the applicant and Sri Harsh Vardhan Gupta, learned counsel for the informant as well as Sri R.P. Patel, learned State Law Officer and perused the record.

3. Supplementary affidavit filed by the learned counsel for the applicant today is taken on record.

4. Applicant seeks bail in Case Crime No. 306 of 2024, under Sections 127(2), 64, 351(2) BNS and Section 3/4(1) of POCSO Act, Police Station Kotwali Mursan, District Hathras, during the pendency of trial. PROSECUTION STORY:

5. The uncle of the victim has instituted the FIR stating that his niece had gone to ease herself out and was not traceable, as such he went to search her and she was found coming to her house wailing and the applicant was following her and subsequently ran away from the place of occurrence seeing the informant on 11.11.2024 at about 00: 30 a.m. ARGUMENTS ON BEHALF OF APPLICANT :

6. The applicant has been falsely implicated in the present case and he has nothing to do with the said offence.

7. The FIR is delayed by about 16 hours and there is no explanation of the said delay caused.

8. The victim in her statement has categorically stated that her house has no bathroom or toilet.

9. The certificate issued by the Gram Pradhan of the village indicates that there was a toilet in the house of the victim which was constructed under the Government Scheme in the year 2015, as such the victim is a consenting party.

10. Even the statement of the victim recorded under section 183 BNSS stands contradicted by the fact that the victim has stated that she was forcibly taken by the applicant by gagging her mouth to his uncle's house and had raped her and her uncle had reached to the place of occurrence and retrieved her while the FIR says that the informant had seen the applicant coming to his house and was followed by the applicant.

11. The victim by her physical appearance seems to be major, although as per ossification test report, the age of the victim has come up to be 15-16 years.

12. There is no medical corroboration of the said incident as the victim has not sustained any injury on her internal or external body organs.

13. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.

14. There is no criminal history of the applicant. The applicant is languishing in jail since 20.11.2024. The applicant is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail. ARGUMENTS ON BEHALF OF INFORMANT :

15. The bail application has been opposed on the ground that the applicant is an influential person of the locality and the father of the victim is a simple truck driver and the informant who happens to be the uncle of the victim, is a vegetable seller on the roadside.

16. The victim has sustained injury on her neck as is evident from the medical report at the C.H.C. on 11.11.2024 at about 3:45 p.m. The said injury is abrasion 1 X 1 c.m. on the left side of the neck, 4 c.m. below the left ear irregular in shape and red in colour. The said injury was found fresh and caused by hard and blunt object. Even the doctor conducting internal and external examination of the victim, has acted in collusion with the applicant as he has not mentioned any external injury observed at C.H.C. Mursan, Hathras. CONCLUSION:

17. In light of the judgement of the Supreme Court passed in Niranjan Singh and another vs Prabhakar Rajaram Kharote and others AIR 1980 SC 785, this Court has avoided detailed examination of the evidence and elaborate documentation of the merits of the case as no party should have the impression that his case has been prejudiced. A prima facie satisfaction of case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.

18. As per ossification test report, the age of the victim is 15 to 16 years and a leverage of two years may be granted to the applicant on the upper side in the light of the judgement of Supreme Court passed in Jaya Mala Vs. State of J & K, (1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi), (2011) 10 SCC 192, whereby it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

19. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.

20. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and Ors., 2022 INSC 690.

21. Reiterating the aforesaid view the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement 2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that "bail is a rule and jail is an exception".

22. Learned State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

23. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned State Law Officer.

24. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, taking into consideration the fact that the FIR is delayed by about 16 hours coupled by the fact that the said injury is minor abrasion on the neck and the circumstances as narrated by the victim which stands contradictory from the fact that there was toilet constructed in the house of the victim and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

25. Let the applicant- Harendra involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. (i) The applicant shall not tamper with evidence. (ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C./351 B.N.S.S. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

26. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

27. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 12.3.2025 Sumit S (Justice Krishan Pahal) SUMIT SRIVASTAVA High Court of Judicature at Allahabad