Rinku Alias Rajesh v. State of U.P. and

1. Heard Mr. Vijay Bahadur, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Ravi Pandey, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. This repeat application for bail has been filed by applicant- Rinku Alias Rajesh, seeking his enlargement on bail in Case Crime No. 117 of 2023, under Sections 376 (A,B), 342, 506 IPC and Section 5(N)/6 POCSO Act, Police Station- Sasani, District- Hathras during the pendency of trial i.e. Sessions Trial No. 833 of 2023 (State Vs. Rinku) now pending in the Court of Special Judge (POCSO Act), Hathras.

4. The first bail application of applicant was rejected by this Court by a detailed order dated 21.11.2023 passed in Criminal Misc. Bail Application No. 37123 of 2023 (Rinku Alias Rajesh Vs. State of U.P. and 3 others). For ready reference, the order dated 21.11.2023 is reproduced hereinunder:- "Heard Mr. Vijay Bahadur, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ravi Pandey, the learned counsel representing first informant. Perused the record. This application for bail has been filed by applicant- Rinku Alias Rajesh seeking his enlargement on bail in Case Crime No. 117 of 2023, under Sections 376 (A,B), 342, 506 IPC and Section 5(N) 6 POCSO Act, Police Station- Sasani, District- Hathra, during the pendency of trial. Present application came up for orders on 26.9.2023, and this Court passed the following order: "Heard Mr. Vijay Bahadur Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ravi Pandey, the learned counsel representing first informant. This application for bail has been filed by applicant Rinku @ Rajesh seeking his enlargement on bail in Case Crime No.117 of 2023, under Section 376 (A,B), 342, 506 IPC and Section 5 (N)/6 Pocso Act, police station Sasni, district Hathras, during the pendency of trial. After some arguments, it transpires from the record that the age of the prosecutrix has been determined as per the date of birth mentioned in the Certificate issued by the Head Mistress, Kanya Inter College, Sasni, Hathras wherein the prosecutrix is pursuing Class-IX. As per the said certificate the date of birth of the prosecutrix as recorded in the school record has been mentioned as 18.11.2011. By virtue of the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, the said certificate cannot be relied upon for determining the age of the prosecutrix with reference to her date of birth recorded in the certificate issued by the Principal of an institution. The age of the prosecutrix can be determined only on the basis of date of birth recorded in such document which falls in sub-sections A and B of aforesaid Section. Similar view has been taken by the Supreme Court in P. Yuvprakash Vs. State Represented by Inspector of Police 2023 SCC Online (SC) 846. Learned A.G.A. submits that the charge-sheet has already been submitted against the applicant on 18.06.2023. In view of above, Investigating Officer is directed to submit an application under Section 173(8) CrPC before the court below seeking permission of the court to conduct further investigation in the matter. Investigating Officer shall examine the record of the institution where the prosecutrix had first studied and shall endeavour to discover the date of birth of the prosecutrix as recorded in the records of said institution. It shall beopen for the Investigating Officer to collect any other document which may be in consonance with the provisions of Section 94 (1)(a) and 94 (1)(b) of Act, 2015. The said exercise shall be completed within a period of three weeks from today. The copy of the supplementary case diary shall be transmitted to this Court by Investigating Officer through the learned A.G.A. before the next date fixed. Put up again as fresh on 18.10.2023. " supplementary case diary Learned A.G.A. contends that subsequent to above order, 26.9.2023, Investigating Officer has conducted further investigation and transmitted the copy of Record shows that in respect of an incident which is alleged to have occurred on 24.10.2023 a belated F.I.R. dated 26.4.2023 was lodged by first informant Ramesh and was registered as Case Crime No. 117 of 2023, under Sections 376 (A,B), 342, 506 IPC and Section 5(N) 6 POCSO Act, Police Station- Sasani, District- Hathra. In the aforesaid F.I.R. applicant has been nominated as solitary named accused. to him. The gravamen of the allegations made in the F.I.R. is to the effect that named accused (applicant herein) deliberately and forcibly dislodged the modesty of daughter of first informant i.e. the prosecutrix namely X aged about 13 years on 24.4.2023. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of chapter XII Cr.P.C. Thereafter the statement of prosecutrix was recorded under section 161 Cr.P.C, which is on record at page 24 of the paper book. Prosecutrix in her aforesaid statement has not only fully supported the F.I.R but also detailed the manner of occurrence. Thereafter the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor who medically examined her has rejoined her previous statement under section 161 Cr.P.C. However, the Doctor who medically examined the prosecutrix did not find any signs on her body so as to denote commission of deliberate or forceful sexual assault. With regard to private part of the body of prosecutrix, the Doctor opined as follows: "Old torn and healed" Thereafter certain samples were taken from the body of prosecutrix for pathalogical examination. However, the result of the same are in negative. As per medical opinion, the prosecutrix is said to be aged about 16 years. Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C. The same is on record at page 60 of the paper book. The prosecutrix in her aforesaid statement has re-iterated her previous statement under section 161 Cr.P.C. but with better particulars and details. During course of investigation, Investigating Officer examined first informant and other witness namely, Kukul who is witness of last seen. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of the named accused is established in the crime in question. Accordingly he submitted the charge sheet dated 18.6.2023, whereby applicant has been charge-sheeted under sections 376 (A,B), 342, 506 IPC and Section 5(N) 6 POCSO Act. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. It is next submitted that prosecutrix and applicant are neighbors and on account of financial dispute, applicant has been falsely implicated. Referring to the medico legal report of the prosecutrix, it is submitted that medical evidence does not support the ocular version of the occurrence as unfolded in the statements of the prosecutrix recorded under sections 161 and 164 Cr.P.C. He, therefore, submits that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedent inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 27.4.2023. As such, he has undergone ten months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. and learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix in her statement under section 161 Cr.P.C. before the Doctor under section 164 C.rP.C. has remained clear, categorical and consistent with regard to the manner of occurrence. As such, the aforesaid statements of the prosecutrix are worthy of credit. Attention of the Court was invited to the statement of independent witness, who has supported the F.I.R in his statement under section 161 Cr.P.C. Learned A.G.A. also contends that the date of birth of the prosecutrix recorded in the institution first attended by her is 18.11.2011. The occurrence giving rise to present criminal proceedings occurred on 24.4.2023. As such, the prosecutrix was aged about 11 years and 5 months on the date of occurrence. However, as per medical opinion, the prosecutrix is said to be aged about 16 years. Referring to the judgement of Supreme Court in X(Minor) Vs/State of Jharkhand and Anr., 2022 Live Law (SC) 194. It is urged that since by any standard, the prosecutrix is below 16 years of age, as such, applicant does not deserve any sympathy of this Court. Upto this stage there is nothing on record to show malacious or false prosecution of applicant or the innocence of applicant. The learned A.G.A. thus contends that applicant is not entitled to bail. When confronted with above, the learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the objections raised by the learned A.G.A. in opposition to present application for bail, could not be dislodged by learned counsel for applicant, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of present application for bail, this Court does not find any good ground to enlarge the applicant on bail. As a result the bail application fails and is liable to be rejected. It is accordingly rejected. "

5. Learned counsel for applicant submit that though applicant is a named and charge sheeted accused, however, in view of subsequent development as have emerged on record of concerned Sessions Trial, the applicant is liable to be enlarged on bail during the pendency of trial.

6. In furtherance of aforesaid submission, the learned counsel for applicant submits that subsequent to the order dated 21.11.2023, the trial of applicant commenced before Court below. Depositions of first informant and the prosecutrix have been recorded before Court below.

7. On the above premise, the learned counsel for applicant submits that once the statements of the first informant and prosecutrix have been recorded before Court below then in that eventuality it cannot be said that if, applicant is enlarged on bail, applicant shall either terrorize the witnesses or shall hamper the course of trial. It is then contended by the learned counsel for applicant that deposition of the prosecutrix is unworthy of credit and reliance inasmuch as there are various contradictions emerging in the depositions of the prosecutrix. The prosecution of the applicant on the basis of such contradictory deposition of the prosecutrix, therefore, cannot be prima facie sustained. As such, the applicant is liable to be enlarged on bail.

8. Even otherwise, 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 27.04.2023. As such, he has undergone more than two years and 2 months of incarceration. The charge sheet/police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant- appellant is enlarged on bail then in that eventuality, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Ravi Pandey, the learned counsel representing first informant opposite party-2 have vehemently opposed the prayer for bail. They submit that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. It is then contended by the learned A.G.A. that prosecutrix has deposed before Court below as PW-2. The prosecutrix in her depositions before Court below has fully supported the FIR. It is on account of above that the prosecutrix has not yet been declared hostile. It is then submitted by the learned A.G.A. that even though this Court is a superior Court dictates of prudence require that this Court should not evaluate the evidence which has emerged on record of the trial pending before Court below as any observations made by this Court shall amount to pre-empting trial causing prejudice to the prosecution or defence. On the above premise, the learned A.G.A. thus submits that no new good or sufficient ground has emerged so as to enlarge the applicant on bail. As such, the present repeat application for bail is liable to be rejected.

10. When confronted with above, the learned counsel for applicant could not overcome the same.

11. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Ravi Pandey, the learned counsel representing first informant opposite party-2 and upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusation made this Court finds that objections raised by the learned A.G.A. and the learned counsel representing first informant opposite party-2 in opposition to the present repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail, but without making any comments on the merits of the case, this Court does not find any new good or sufficient ground so as to enlarge the applicant on bail.

12. As a result, the present repeat application for bail fails and is liable to be rejected.

13. It is, accordingly rejected. Order Date :- 8.7.2025 Imtiyaz IMTIYAZ AHMAD High Court of Judicature at Allahabad

1. Heard Mr. Vijay Bahadur, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Ravi Pandey, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. This repeat application for bail has been filed by applicant- Rinku Alias Rajesh, seeking his enlargement on bail in Case Crime No. 117 of 2023, under Sections 376 (A,B), 342, 506 IPC and Section 5(N)/6 POCSO Act, Police Station- Sasani, District- Hathras during the pendency of trial i.e. Sessions Trial No. 833 of 2023 (State Vs. Rinku) now pending in the Court of Special Judge (POCSO Act), Hathras.

4. The first bail application of applicant was rejected by this Court by a detailed order dated 21.11.2023 passed in Criminal Misc. Bail Application No. 37123 of 2023 (Rinku Alias Rajesh Vs. State of U.P. and 3 others). For ready reference, the order dated 21.11.2023 is reproduced hereinunder:- "Heard Mr. Vijay Bahadur, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ravi Pandey, the learned counsel representing first informant. Perused the record. This application for bail has been filed by applicant- Rinku Alias Rajesh seeking his enlargement on bail in Case Crime No. 117 of 2023, under Sections 376 (A,B), 342, 506 IPC and Section 5(N) 6 POCSO Act, Police Station- Sasani, District- Hathra, during the pendency of trial. Present application came up for orders on 26.9.2023, and this Court passed the following order: "Heard Mr. Vijay Bahadur Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ravi Pandey, the learned counsel representing first informant. This application for bail has been filed by applicant Rinku @ Rajesh seeking his enlargement on bail in Case Crime No.117 of 2023, under Section 376 (A,B), 342, 506 IPC and Section 5 (N)/6 Pocso Act, police station Sasni, district Hathras, during the pendency of trial. After some arguments, it transpires from the record that the age of the prosecutrix has been determined as per the date of birth mentioned in the Certificate issued by the Head Mistress, Kanya Inter College, Sasni, Hathras wherein the prosecutrix is pursuing Class-IX. As per the said certificate the date of birth of the prosecutrix as recorded in the school record has been mentioned as 18.11.2011. By virtue of the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, the said certificate cannot be relied upon for determining the age of the prosecutrix with reference to her date of birth recorded in the certificate issued by the Principal of an institution. The age of the prosecutrix can be determined only on the basis of date of birth recorded in such document which falls in sub-sections A and B of aforesaid Section. Similar view has been taken by the Supreme Court in P. Yuvprakash Vs. State Represented by Inspector of Police 2023 SCC Online (SC) 846. Learned A.G.A. submits that the charge-sheet has already been submitted against the applicant on 18.06.2023. In view of above, Investigating Officer is directed to submit an application under Section 173(8) CrPC before the court below seeking permission of the court to conduct further investigation in the matter. Investigating Officer shall examine the record of the institution where the prosecutrix had first studied and shall endeavour to discover the date of birth of the prosecutrix as recorded in the records of said institution. It shall beopen for the Investigating Officer to collect any other document which may be in consonance with the provisions of Section 94 (1)(a) and 94 (1)(b) of Act, 2015. The said exercise shall be completed within a period of three weeks from today. The copy of the supplementary case diary shall be transmitted to this Court by Investigating Officer through the learned A.G.A. before the next date fixed. Put up again as fresh on 18.10.2023. " supplementary case diary Learned A.G.A. contends that subsequent to above order, 26.9.2023, Investigating Officer has conducted further investigation and transmitted the copy of Record shows that in respect of an incident which is alleged to have occurred on 24.10.2023 a belated F.I.R. dated 26.4.2023 was lodged by first informant Ramesh and was registered as Case Crime No. 117 of 2023, under Sections 376 (A,B), 342, 506 IPC and Section 5(N) 6 POCSO Act, Police Station- Sasani, District- Hathra. In the aforesaid F.I.R. applicant has been nominated as solitary named accused. to him. The gravamen of the allegations made in the F.I.R. is to the effect that named accused (applicant herein) deliberately and forcibly dislodged the modesty of daughter of first informant i.e. the prosecutrix namely X aged about 13 years on 24.4.2023. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of chapter XII Cr.P.C. Thereafter the statement of prosecutrix was recorded under section 161 Cr.P.C, which is on record at page 24 of the paper book. Prosecutrix in her aforesaid statement has not only fully supported the F.I.R but also detailed the manner of occurrence. Thereafter the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor who medically examined her has rejoined her previous statement under section 161 Cr.P.C. However, the Doctor who medically examined the prosecutrix did not find any signs on her body so as to denote commission of deliberate or forceful sexual assault. With regard to private part of the body of prosecutrix, the Doctor opined as follows: "Old torn and healed" Thereafter certain samples were taken from the body of prosecutrix for pathalogical examination. However, the result of the same are in negative. As per medical opinion, the prosecutrix is said to be aged about 16 years. Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C. The same is on record at page 60 of the paper book. The prosecutrix in her aforesaid statement has re-iterated her previous statement under section 161 Cr.P.C. but with better particulars and details. During course of investigation, Investigating Officer examined first informant and other witness namely, Kukul who is witness of last seen. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of the named accused is established in the crime in question. Accordingly he submitted the charge sheet dated 18.6.2023, whereby applicant has been charge-sheeted under sections 376 (A,B), 342, 506 IPC and Section 5(N) 6 POCSO Act. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. It is next submitted that prosecutrix and applicant are neighbors and on account of financial dispute, applicant has been falsely implicated. Referring to the medico legal report of the prosecutrix, it is submitted that medical evidence does not support the ocular version of the occurrence as unfolded in the statements of the prosecutrix recorded under sections 161 and 164 Cr.P.C. He, therefore, submits that applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedent inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 27.4.2023. As such, he has undergone ten months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. and learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix in her statement under section 161 Cr.P.C. before the Doctor under section 164 C.rP.C. has remained clear, categorical and consistent with regard to the manner of occurrence. As such, the aforesaid statements of the prosecutrix are worthy of credit. Attention of the Court was invited to the statement of independent witness, who has supported the F.I.R in his statement under section 161 Cr.P.C. Learned A.G.A. also contends that the date of birth of the prosecutrix recorded in the institution first attended by her is 18.11.2011. The occurrence giving rise to present criminal proceedings occurred on 24.4.2023. As such, the prosecutrix was aged about 11 years and 5 months on the date of occurrence. However, as per medical opinion, the prosecutrix is said to be aged about 16 years. Referring to the judgement of Supreme Court in X(Minor) Vs/State of Jharkhand and Anr., 2022 Live Law (SC) 194. It is urged that since by any standard, the prosecutrix is below 16 years of age, as such, applicant does not deserve any sympathy of this Court. Upto this stage there is nothing on record to show malacious or false prosecution of applicant or the innocence of applicant. The learned A.G.A. thus contends that applicant is not entitled to bail. When confronted with above, the learned counsel for applicant could not overcome the same. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the objections raised by the learned A.G.A. in opposition to present application for bail, could not be dislodged by learned counsel for applicant, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of present application for bail, this Court does not find any good ground to enlarge the applicant on bail. As a result the bail application fails and is liable to be rejected. It is accordingly rejected. "

5. Learned counsel for applicant submit that though applicant is a named and charge sheeted accused, however, in view of subsequent development as have emerged on record of concerned Sessions Trial, the applicant is liable to be enlarged on bail during the pendency of trial.

6. In furtherance of aforesaid submission, the learned counsel for applicant submits that subsequent to the order dated 21.11.2023, the trial of applicant commenced before Court below. Depositions of first informant and the prosecutrix have been recorded before Court below.

7. On the above premise, the learned counsel for applicant submits that once the statements of the first informant and prosecutrix have been recorded before Court below then in that eventuality it cannot be said that if, applicant is enlarged on bail, applicant shall either terrorize the witnesses or shall hamper the course of trial. It is then contended by the learned counsel for applicant that deposition of the prosecutrix is unworthy of credit and reliance inasmuch as there are various contradictions emerging in the depositions of the prosecutrix. The prosecution of the applicant on the basis of such contradictory deposition of the prosecutrix, therefore, cannot be prima facie sustained. As such, the applicant is liable to be enlarged on bail.

8. Even otherwise, 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 27.04.2023. As such, he has undergone more than two years and 2 months of incarceration. The charge sheet/police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant- appellant is enlarged on bail then in that eventuality, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Ravi Pandey, the learned counsel representing first informant opposite party-2 have vehemently opposed the prayer for bail. They submit that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. It is then contended by the learned A.G.A. that prosecutrix has deposed before Court below as PW-2. The prosecutrix in her depositions before Court below has fully supported the FIR. It is on account of above that the prosecutrix has not yet been declared hostile. It is then submitted by the learned A.G.A. that even though this Court is a superior Court dictates of prudence require that this Court should not evaluate the evidence which has emerged on record of the trial pending before Court below as any observations made by this Court shall amount to pre-empting trial causing prejudice to the prosecution or defence. On the above premise, the learned A.G.A. thus submits that no new good or sufficient ground has emerged so as to enlarge the applicant on bail. As such, the present repeat application for bail is liable to be rejected.

10. When confronted with above, the learned counsel for applicant could not overcome the same.

11. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, Mr. Ravi Pandey, the learned counsel representing first informant opposite party-2 and upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusation made this Court finds that objections raised by the learned A.G.A. and the learned counsel representing first informant opposite party-2 in opposition to the present repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail, but without making any comments on the merits of the case, this Court does not find any new good or sufficient ground so as to enlarge the applicant on bail.

12. As a result, the present repeat application for bail fails and is liable to be rejected.

13. It is, accordingly rejected. Order Date :- 8.7.2025 Imtiyaz IMTIYAZ AHMAD High Court of Judicature at Allahabad