High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38650 of 2022 Applicant :- Monu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jagdish Prasad Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Jagdish Prasad Mishra, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Monu seeking his enlargement on bail in Case Crime No. 0197 of 2021, under Sections 376, 313, 316, 452, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Shahpur, District Muzaffarnagar, during the pendency of trial. Perused the record. Record shows that in respect of an incident, which is alleged to
Legal Reasoning
have occurred on 1.7.2022, first informant Smt. Tarawati (mother of the prosecutrix) lodged a delayed F.I.R. dated 2.7.2022 which was registered as Case Crime No. 0197 of 2021, under Sections 376, 313, 316, 452, 323, 506 IPC and Sections 3/4 POCSO Act, P.S. Shahpur, District Muzaffarnagar In the aforesaid F.I.R., three persons namely Monu (applicant herein), Tinku and Kamlesh have been nominated as named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Monu is a neighbour of first informant. He is alleged to be in love affair with the daughter of first informant and by extending false promise of marriage, he has maintained physical relation with the daughter of first informant. On account of above, the daughter of first informant came in family way. Upon gaining knowledge of aforesaid fact, named accused in the absence of family members of prosecutrix took her to Tomar Clinic and Ultra Sound Centre on 1.7.2022. At the aforesaid clinic one Dr. Deepa Tomar conducted abortion. When the first informant objected to above, then named accused came at the house of first informant, conducted marpit and exhorted that if any proceedings are conducted against them, then she shall be killed. After lodging of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. He examined the prosecutrix under Section 161 Cr. P. C. The prosecutrix in her aforesaid statement has supported the F.I.R. She has detailed about an occurrence in which her modesty was dislodged in the house of applicant and about the other occurrence when the mother of applicant is alleged to have taken her for abortion, the abortion having been carried out and thereafter she being dropped at her home with the extended threat that in case she disclosed about the same to any body, she would be killed. Thereafter, the prosecutrix was requested for her medical examination. The prosecutrix in her statement before the Doctor has supported the F.I.R. but not the manner of occurrence as detailed in the F.I.R. In fact, the prosecutrix now stated that her modesty was dislodged repeatedly. However, the Doctor who examined the prosecutrix did not find any sign on her body denoting commission of sexual violence. With regard to the private part of the prosecutrix, the Doctor opined as follows:- Hymen old torn, healed margins. Ultimately the Doctor opined as follows:- No external injury present. No sign of force/forceful penetration however sexual assault cannot be ruled out. DNA report awaited. Certain samples were collected from the body of the prosecutrix for pathological examination. The supplementary medico legal report of the prosecutrix as endorsed in the case diary has been brought on record as Annexure 6 to the affidavit. Perusal of same goes to show that prosecutrix had conceived and remains of conception/blood clots were seen in X Ray. As per the medical opinion, the prosecutrix was said to be aged about 18 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr. P. C. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr. P. C. Thereafter, Investigating Officer examined other witnesses including the first informant who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating Officer, he opined to submit charge sheet. Accordingly, he submitted the charge sheet.
Legal Reasoning
Learned counsel for applicant submits that though applicant is a named and charge sheeted accused, but he is innocent. As per medical opinion, the prosecutrix is aged about 18 years. As such she is a consenting and willing party as the occurrence is alleged to have taken place in the house of applicant. In view of above, no offence under Section 376 IPC can be said to have been committed by applicant. There is nothing on record to show that prosecutrix is below 18 years of age. As such, no offence under Sections 3/4 POCSO Act is made out against applicant. The statements of the prosecutrix as recorded under Section 161 Cr. P. C. before the Doctor and the statement under Section 164 Cr. P. C. are inconsistent. As such, same do not fall in the category of impeccable evidence. Neither in the F.I.R. nor in the aforementioned statements of prosecutrix, the day, date and time of occurrence has been mentioned. The prosecution story is highly improbable. The Doctors who have been examined by the Investigating Officer have not supported the prosecution story to the extent that abortion was carried out upon the prosecutrix. As such, the prosecution of applicant is on account of an ulterior motive. Even otherwise, applicant is a man of clean antecedents and has no criminal history to his credit except the present one. Applicant is in jail since 4.7.2022. As such, he has undergone more than more than 3 and a 1/2 months of incarceration. In case, 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. has opposed the present application for bail. Learned A.G.A. contends that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. According to learned A.G.A. there is nothing on record to infer false or malicious prosecution of applicant. The prosecutrix is an illiterate girl with mental deformity. However, she has supported the F.I.R. The absence of day, date and time of occurrence in the relevant column of the F.I.R., the statement of first informant or the prosecutrix by itself is not so sufficient to disbelieve the prosecution story. He has then invited the attention of the Court to the recital contained at page 27 of the paper book, and which according to learned A.G.A. is an strong indicator to suggest that prosecution case is truthful. He has also referred to the supplementary medical report of the prosecutrix at page 57 of the paper book. On the basis of above, he contends that medical evidence clearly corroborates the prosecution story. On the cumulative strength of above, the learned A.G.A. contends that applicant does not deserve any indulgence of this Court. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the supplementary medical legal report of the prosecutrix clearly goes to show that prosecutrix came in family way, but without expressing any opinion on the merits of the case, no ground for bail is made out by the applicant. In view of above, application for bail fails and is liable to be rejected. Accordingly, the bail application is rejected. Order Date :- 24.11.2022 HSM Digitally signed by HARI SHANKER MISHRA Date: 2022.12.07 13:22:37 IST Reason: Location: High Court of Judicature at Allahabad