High Court
Case Details
Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8638 of 2023 Applicant :- Parsan Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kamla Singh,Akhilesh Kumar Counsel for Opposite Party :- G.A.,Rajesh Kumar Nishad Hon'ble Sameer Jain,J. 1. Supplementary affidavit filed today on behalf of the applicant is taken on record.
Legal Reasoning
2. Heard Smt. Kamla Singh, learned counsel for the applicant, Sri Rajesh Kumar Nishad, learned counsel for the informant and Dr. S.B. Maurya, learned AGA-I for the State. 3. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 50 of 2022, under Sections 363, 376, 342, 506 IPC and Section 3/4 POCSO Act, Police Station Kishunpur, District Fatehpur during pendency of the trial. 4. FIR of the present case was lodged against applicant and two others and according to the FIR applicant and two other co- accused persons enticed away the minor daughter of the informant aged about 16 years in her absence and it is further stated in the FIR that applicant and other co-accused persons and her daughter also taken away some jewellery and Rs. 15,000/-. 5. Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and applicant did not entice away the daughter of the informant and in fact daughter of the informant is major girl and she love the applicant and with her consent both performed marriage in a temple and thereafter they started living as husband and wife and victim of the present case resided with applicant as his wife for three months and thereafter when she returned to her native place then on the instigation of her parents she started alleging against the applicant. She further submitted that there are major contradictions in the statements of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. and in the statement recorded under Section 161 Cr.P.C. victim stated that applicant and co-accused Buddhraj committed rape with her and they kept her for three months but in the statement recorded under Section 164 Cr.P.C. she did not make any allegation against co-accused Buddhraj and stated that after consuming cashew she lost her control and become unconscious and thereafter applicant taken her to Mumbai and committed rape with her and this fact clearly suggests that victim of the case is not reliable witness and no reliance can be placed on her story. 6. Learned counsel for the applicant further submits that as per CMO Fatehpur, the radiological age of the victim is 16 years and according to the victim she is around 17 years of age and there is no educational certificate of the victim on record and as there is variation of two years either side, therefore, it cannot be said that victim was minor. She further submits that applicant is not having any previous criminal history and in the present matter he is in jail since 04.11.2022 i.e. for last about five months. 7. Per contra, learned AGA and learned counsel for the informant opposed the prayer for bail and submitted that from the report of CMO victim is 16 years of age and this fact suggests that she is below 18 years and both the counsels further submitted that there is specific allegation against the applicant that he committed rape with her but could not dispute the fact that there are major contradiction in the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. and in the statement recorded under Section 161 Cr.P.C. she stated that along with applicant co-accused Buddhraj also committed rape with her and she stayed along with applicant for three months and in between she did not raise any alarm. 8. I have heard learned counsel for the parties and perused the record of the case. 9. Although, there is allegation against applicant of rape in both the statements of victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. but applicant has come with specific plea that victim is major girl and applicant has performed marriage with her in a temple and there is no educational certificate on record of victim which can show her age and according to CMO, the age of the victim is 16 years but according to the victim and informant she is around 17 years of age, therefore, at this stage merely on the basis of CMO certificate it cannot be precisely observed that victim is below 18 years of age. Further, there are major contradiction in the statements of victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. and she remained along with applicant for three months, therefore, considering the facts and circumstances of the case, in my view, applicant is entitled to be released on bail. 10. Therefore, from the discussion made above, in view of this Court, it is a fit case to release the applicant on bail. 11. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed. 12. Let the applicant - Parsan be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti- social activity. 13. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant. Order Date :- 24.4.2023 AK Pandey Digitally signed by :- ANUPAM KUMAR PANDEY High Court of Judicature at Allahabad