High Court
Case Details
Neutral Citation No. - 2022:AHC:224884 Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29587 of 2022 Applicant :- Gorakh Nishad Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Ravindra Prakash Srivastava,Neeraj Srivastava,Rayoof Ali Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr.Neeraj Srivastava, the learned counsel for applicant, the learned A.G.A. for State. 2. Perused the record. 3. Instant bail application has been filed by applicant- Gorakh Nishad seeking his enlargement on bail in Case Crime No. 0091 of 2022 under Sections 376, 323, 342 I.P.C. and Sections 3/4 POCSO Act, Police Station- Belhar Kalan, District-Sant Kabir Nagar, during the pendency of trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on26.05.2022, a delayed F.I.R. dated 27.05.2022
Legal Reasoning
was lodged by first informant-HariLal Nishad (father of the prosecutrix) and was registered as Case Crime No. 0091 of 2022 under Sections 376, 323, 342 I.P.C. and Sections 7/8 POCSO Act, Police Station- Belhar Kalan, District-Sant Kabir Nagar. In the aforesaid F.I.R., applicant Gorakh Nishad has been nominated as solitary named accused. 5. The gravamen of the allegations made in the F.I.R. is to the effect that on 26.05.2022 at around 11.00 PM. named accused kidnapped the daughter of first informant namely X Minor i.e. prosecutrix and thereafter, dislodged her modesty by forcibly committing rape upon her. 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 first recorded the statement of first informant under Section 161 Cr.P.C., wherein he has supported the F.I.R.. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. wherein he prosecutrix has not only supported the F.I.R. but has also detailed the manner of occurrence. Subsequent to above, the prosecutrix was requested for her internal medical examination. The doctor, who examined the prosecutirix did not find any signs on the person of prosecutrix so as to denote commission of sexual assault. Ultimately, the Doctor opined as follows: " Pubic hairs present. Axillary hair absent. Multiple bruises on back, on the right side of lumbar area and on the spinal area around, 1x2 cm., no sign of any cut for bleeding. Vaginal sear made and sent to F.S.L. Lucknow. LMP 26.05.2022, hymen is intact, seen via speculum DNA analysis not done due to negative consent." 7. Thereafter, statement of prosecutrix was recorded under Section 164 Cr.P.C. Subsequently Investigating Officer examined one Ajay Prakash, the Head Master of the Primary School, Nidhuri where the prosecutrix had studied from Class 1 to 5. In the certificate issued by the Headmaster, the date of birth of prosecutrix is said to be recorded in the School Records as 25.08.2009. During course of investigation, Investigating Officer also examined other witnesses, who have supported the F.I.R. 8. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. 9. Learned A.G.A. submits that as per the instruction received by him, the charge-sheet has not yet been submitted. 10. Learned counsel for applicant submits that though the applicant is a named accused but he is innocent. He has then invited the attention of Court to the statements of prosecutrix as recorded under Sections 161/164 Cr.P.C.. When a parallel between the two is drawn then statements of prosecutrix are not categorical, consistent and unambiguous therefore, the prosecution of applicant cannot be maintained on the basis of aforesaid. Medical evidence does support the ocular version of the occurrence. It is lastly contended that 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 custody since 28.05.2022. As such, he has undergone more than 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. On the cumulative strength of above, learned counsel for applicant submits that applicant is liable to be enlarged on bail. 11. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G..A. Submits that prosecutrix is a young girl aged about 14 years, as per the date of birth recorded in the School Record which is 25.08.2009. Occurrence giving rise to present criminal proceedings occurred on 26.05.2022. As such, prosecutrix was aged about 14 years and 4 months on the date of occurrence. It is then contended that statements of prosecutrix as recorded under Sections 161/164 Cr.P.C. when examined as a whole, are clear and categorical. There is no amiability in the same. It is then contended by learned A.G.A. that even in the absence of medical evidence, prosecution of an accused for an offence under Section 376 I.P.C. can be maintained on the oral testimony of prosecutrix, if any, fall in the category of impeccable evidence. In support of above submission, learned A.G.A. has relied upon the judgement of Apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74. On the aforesaid premise, learned A.G.A. submits that present application for bail is liable to be rejected by this Court.
Legal Reasoning
12. When confronted with above, the learned counsel for applicant could not overcome the same. 13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that prosecutrix has supported the F.I.R. in her statements under Sections 161/164 Cr.P.C., the same are consistent, categorical and unambiguous, there is no material on record to infer upto this stage that the prosecution of applicant is false or malicious, prosecutrix is a young girl aged about 14 years but without expressing any opinion on the merits of the case, this Court does not find any good ground to enlarge the applicant on bail;. 14. Consequently, present application fails and is therefore liable to be rejected. 15. According, present application for bail is rejected. Order Date :- 21.12.2022 YK Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad