Sunny Alias Ashwani v. State Of U.P. And 3 Others

Office is directed to send the said original ossification test report to the trial court after retaining the photocopy of the same.

Heard Sri Javed Alam, learned counsel for the applicant and Sri Pranshu Kumar, learned A.G.A. for the State and also perused the material placed on record.

Applicant seeks bail in Sessions Trial No. 72 of 2024 arising out of Case Crime No. 1121 of 2023, under Sections 363, 376(3) of IPC and Sections 3/4(2) of POCSO Act, Police Station - Kavi Nagar, District - Ghaziabad, during the pendency of trial.

The FIR was instituted by the informant against unknown person regarding missing of his minor daughter, age about 12 years.

Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case. He has nothing to do with the said offence as alleged in the FIR. The FIR is delayed and even no time of her missing is mentioned in it. The victim by her looks seems to be major although as per ossification test report, her age has come out to be 16 years, as such, a leverage of two years may be granted to the applicant on upper side in light of law laid down by Supreme Court. There is no medical corroboration of the incident.

Learned counsel has further stated that the victim in her statement recorded u/s 164 Cr.P.C. has categorically stated that she was called by the applicant, as such, she had gone to his house whereby he had forcibly closed his door and committed rape with her and she could return to her house, the same day in the midnight of 11/12.12.2023, as such, her consent can be drawn from the said fact. There is no criminal history of the applicant. The applicant is languishing in jail since 12.12.2023 and he is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Per contra, learned AGA has vehemently opposed the bail application but unable to dispute the submissions raised by the learned counsel for the applicant and also the fact that the applicant has no criminal history.

With respect to the age of the victim, a leverage of two years can be granted to the applicant on the upper side in 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.

Let the applicant- Sunny Alias Ashwani, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. i) The applicant will not tamper with the evidence during trial. ii) The applicant will not pressurise/intimidate with the prosecution witnesses. iii) The applicant will appear before the trial court on the date fixed.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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:- 28.4.2025 Siddhant (Justice Krishan Pahal) SIDDHANT SAHU High Court of Judicature at Allahabad