High Court
Case Details
Neutral Citation No. - 2023:AHC:157379 Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43986 of 2022 Applicant :- Rahul Kashyap Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mayank Yadav,Ajay Singh Yadav,Vivek Kumar Singh Counsel for Opposite Party :- G.A.,Seema Pandey Hon'ble Sameer Jain,J. 1. As matter pertains to provisions of POCSO Act as well as SC/ST Act, therefore, notice was issued to informant of the case. As per the office report dated 23.02.2023, notice has been served personally to the informant.
Legal Reasoning
2. Despite service of notice, none appeared on behalf of the informant, however, learned AGA for the State and learned counsel appearing on behalf of High Court Legal Services are present. 3. Heard Sri Ajay Singh Yadav, learned counsel for the applicant, Sri Santosh Nigam, learned AGA for the State-respondent and Ms. Seema Pandey, learned counsel appearing on behalf of High Court Legal Services. 4. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 651 of 2021, under Sections 363, 343, 376-D IPC & 5GA, 6 POCSO Act & 3(2)5 SC/ST Act, Police Station- T.P. Nagar, District- Meerut, during pendency of the trial in the court below. 5. From the perusal of the FIR, it appears that on the basis of suspicion on the applicant, FIR was lodged against the applicant and co-accused Sanny. 6. Learned counsel for the applicant submitted that totally on the basis of false allegation, on the suspicion applicant has been made accused in the present matter and when the statement of the victim was recorded under Section 161 Cr.P.C. then she categorically stated that she is major and she had gone along with the applicant according to her own wish and also performed marriage with the applicant but when her statement was recorded under Section 164 Cr.P.C. then she stated that applicant and number of other accused persons committed rape with her, therefore, she changed her entire version of Section 161 Cr.P.C. 7. He further submitted that although, as per the school leaving certificate, prosecutrix is around 16 years' old but in fact she is major and this fact is evident from her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. in which she disclosed her age as 19 years and even in the FIR, her date of birth was disclosed as 01.01.2002 and according to the FIR also prosecutrix is more than 18 years of age. 8. He further submitted that applicant is not having any criminal history and he is in jail since 01.02.2022 i.e. for almost one and half years. 9. Per contra, learned AGA as well as learned counsel appearing on behalf of High Court Legal Services opposed the prayer for bail and submitted that as per the school leaving certificate, victim is around 16 years' old and she in her statement recorded under Section 164 Cr.P.C. made allegation of gang rape against the applicant and others but could not dispute the fact that in the statement recorded under Section 161 Cr.P.C. she did not make any allegation against the applicant and during investigation, her ossification test was not conducted. 10. I have heard both the parties and perused the record of the case. 11. Although, from the school leaving certificate, victim was around 16 years' old at the time of incident and she in her statement recorded under Section 164 Cr.P.C. stated that applicant and others committed rape with her but statement recorded under Section 164 Cr.P.C. is contrary to her statement recorded under Section 161 Cr.P.C. in which she stated that she had gone along with the applicant according to her own wish and also performed marriage with him. 12. Further, in the FIR date of birth of the victim has been disclosed as 01.01.2002 and according it, she was more than 18 years' old at the time of incident and in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. victim also disclosed her age as 19 years, therefore, merely on the basis of school leaving certificate at this stage it cannot be said that victim was below 18 years of age. 13. Further, recently Supreme Court in case of "P. Yuvaprakash vs. State Rep. By Inspector of Police in Criminal Appeal No. 1898 of 2023 decided on 18.07.2023" categorically observed that for the purpose of POCSO Act school leaving certificate and transfer certificate issued by the school is not admissible for the purpose of age of the prosecutrix. 14. Further, applicant is not having any criminal history and he is in jail for one and half years. 15. Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail. 16. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed. 17. Let the applicant- Rahul Kashyap 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. 18. 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. 19. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 4.8.2023 KK Patel Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad