High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26737 of 2022 Applicant :- Pawan Gaur Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Vinod Kumar Yadav Counsel for Opposite Party :- G.A.,Firdos Ahmad,Mahesh Kumar Hon'ble Rajeev Misra,J. 1. Heard Mr. Vinod Kumar Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Mahesh Kumar, the learned counsel representing first informant. 2. Perused the record. 3. Instant application for bail has been filed by applicant-Pawan Gaur seeking his enlargement on bail in Case Crime No. 221 of 2022 under Sections 363, 376 I.P.C. and Sections 3/4 POCSO Act, Police Station- Atrauliya, District-Azamgarh, during pendency of trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on 08.12.2021 a delayed F.I.R. dated
Legal Reasoning
14.12.2021 was lodged by first informant Meena Devi (Mother of the prosecutrix) and was registered as221 of 2022 under Section 363, Police Station- Atrauliya, District-Azamgarh. In the aforesaid F.I.R. applicant-Pawan Gaur has been nominated as solitary named accused. 5. The gravamen of the allegations made in the F.I.R is to the effect that named accused enticed away the minor daughter of first informant namely Sonam Rajbhar, aged about 16 years. 6. After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He examined first informant and other witness under Section 161 Cr.P.C., who have supported the prosecution story as unfolded in the F.I.R. The prosecutrix was recovered on 28.03.2022. Thereafter, the statement of prosecutrix was recorded under Section 161 Cr.P.C. wherein she has not supported the prosecution story. To the contrary, the prosecutrix has stated that she went with the applicant out of her own-free will. Consequently, she has solemnized married with applicant. Thereafter, the prosecutrix was medically examined. The prosecutrix in her statement before the Doctor has reiterated her earlier statement recorded under Section 161 Cr.P.C. The Doctor, who examined the prosecutrix, did not find any sign on the person of prosecutrix so as to denote commission of sexual violence. 7. Certain samples were taken from the body of the prosecutrix for pathological examination. However, supplementary medical report has not been brought on record. Ultimately, the statement of prosecutrix was recorded under Section 164 wherein again she has rejoined her earlier statement recorded under Section 161 Cr.P.C. 8. Upon completion of investigation, Investigating Officer submitted the charge-sheet dated 20.04.2022 whereby applicant has been charge-sheeted under Sections under Sections 363 376 I.P.C. and Sections 3/4 POCSO Act. 9. Learned counsel for applicant submits that applicant is innocent. He has been falsely implicated in concerned case crime number. With reference to the material brought on record, learned counsel for applicant contends that prosecutrix is a consenting party. As per material on record, the age of the prosecutrix on the date of occurrence was 16 years, 2 months and 19 days. However, as per the medical evidence, she is aged about 17-18 years. Moreover, she has not supported the prosecution story as unfolded in the F.I.R. in her statement under Section 161 Cr.P.C., in her statement before the Doctor as well as in her statement under Section 164 Cr.P.C. The medical evidence also does not support the prosecution story. Prosecutrix is a consenting party. On the aforesaid premise,
Legal Reasoning
learned counsel for applicant submits no offence under Sections 363 and 376 I.P.C. can be said to have been committed by applicant. It is lastly contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except present one. Applicant is in jail since 07.04.2022. As such, he has undergone almost six months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. The charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during course of trial. On the cumulative strength of aforesaid, he submits that applicant is liable to be enlarged on bail 10. Per contra, the learned A.G.A. has opposed the present application for bail.However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant. 11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that prosecutrix is a consenting party and she having not supported the prosecution story in her statements under Sections 161 and 164 Cr.P.C., she being more then 16 years of age on the date of occurrence as per educational record as well as the fact that medical evidence does not support the prosecution story but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 12. Accordingly, present application for bail is allowed. 13. Let the applicant-Pawan Gaur involved in aforesaid 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 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. 14. 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 :- 3.11.2022 YK Digitally signed by YASHWANT KUMAR Date: 2022.11.03 18:44:04 IST Reason: Location: High Court of Judicature at Allahabad