High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53799 of 2022 Applicant :- Manish Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Hitesh Pachori Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Hitesh Pachori, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Instant application for bail has been filed by applicant- Manish seeking his enlargement on bail in Case Crime No. 0061 of 2021 under Sections 366, 376, 342 I.P.C. and Sections 3/4 POCSO Act, Police Station-Saiyan, District-Agra, during the pendency of trial. 4. Learned A.G.A. contends that notice has been served upon
Legal Reasoning
first informant. However, in spite of service of notice upon first informant/opposite party-2, no one has put in appearance on behalf of first informant to oppose this bail application. 5. Record shows that in respect of an incident, which is alleged to have occurred on 15.04.2021, a delayed F.I.R. dated 19.04.2021 was lodged by first informant-Rameshwar (Father of the prosecutrix) and was registered as Case Crime No. 0061 of 2021 under Sections 376, 342 I.P.C. and Sections 3/4 POCSO Act, Police Station-Saiyan, District-Agra. In the aforesaid F.I.R. applicant-Manish has been nominated as solitary named accused. 6. The gravamen of the allegations made in the F.I.R is to the effect that on 15.04.2021 at around 9.30 P.M., prosecutrix had gone outside her house in a field to attend the call of nature. Applicant is alleged to have kidnapped the prosecutrix and thereafter, dislodged her modesty at his home. 7. 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. Statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr.P.C. In her aforesaid statement, prosecutrix has not only supported the prosecution story but also detailed the manner of occurrence and subsequent events thereafter. The prosecutrix was requested for her medical examination. In her statement before the Doctor she has again reiterated her earlier statement recorded under Section 161 Cr.P.C. However, the Doctor who examined the prosecutrix, did not find any sign on her body so as to denote commission of sexual assault. With regard to private part of prosecutrix, the Doctor has opined as follows: "Old, torn, healed." 8. Ultimately, upon completion of medical examination of the prosecutrix, the Doctor opined: "No signs and.suggestive of recent sexual assault. No definite opinion can be given about assault." 9. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the supplementary Medico Legal Report of prosecutrix shows negative result. 10. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C. wherein she has rejoined her earlier statement under Section 161 Cr.P.C. as well as her statement before the doctor but has subsequently, departed from the same in the later part of her statement. 11. During course of investigation, Investigating Officer recovered the High School Certificate of prosecutrix wherein her date of birth is recorded as 11.06.2001. Consequently, on the date of occurrence, i.e. 15.04.2021, prosecutrix was aged about 15 years and 10 months. 12. 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 in the crime in question is established. He, accordingly, submitted the charge- sheet dated 15.06.2021 whereby applicant-Harshit Mishra has been charge sheeted under Sections 363, 376, 342 I.P.C. and Section 3/4 POCSO Act.
Legal Reasoning
13. Mr. Hitesh Pachori, the learned counsel for applicant submits that though the applicant is a named as well as charge- sheeted accused but he is innocent. According to learned counsel for applicant, medical evidence does not support the prosecution story as unfolded in the F.I.R. as well as the statement of the prosecutrix. In view of above no prosecution of applicant under Section 376 I.P.C. can be mantained. It is next contended that even though in the absence of medical evidence, prosecution for an offence under 376 I.P.C. can be maintained on the basis of oral testimony of prosecutrix. However the same must be in impeccable character. Learned counsel for applicant in support of above has placed reliance upon the judgement of Apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74. 14. On the basis of above, learned counsel for applicant submits that when the statement of prosecutrix as recorded under Section 161 Cr.P.C., statement before Doctor and statement under Section 164 Cr.P.C. are taken as a whole then they do not fall in the category of impeccable evidence. There is nothing on record on the basis of which prosecution of applicant can be maintained. 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 20.04.2021. As such, he has undergone more one year and nine months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Charge-sheet having 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 the trial. On the cumulative strength of above, learned counsel for applicant submits that applicant is liable to be enlarged on bail 15. Per contra, the learned A.G.A. for State has opposed the present bail application. He contends that since applicant is a named as well as charge-sheeted accused, therefore, he does not deserved any indulgence by this Court. He is guilty of committing an offence under Section 376 I.PC., which can be classified as "moral turpitude". He has invited the attention of Court to Section 375 I.P.C. as well as Sections 3/4 and Section 6 POCSO Act. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, at this stage. 16. 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 the medical evidence does not support the prosecution story as unfolded in the F.I.R., statements of prosecutrix under Sections 161/164 Cr.P.C. and before Doctor, when taken as a whole do not fall in the category of impeccable evidence as well as the period of incarceration undergone by applicant, the unexplained conduct on the part of the prosecutrix from 15.04.2021 to 19.04.2021 regarding the whereabouts of the prosecutrix but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 17. Accordingly, present application for bail is allowed. 18. Let the applicant-Manish 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. 19. 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 :- 9.12.2022 YK Digitally signed by YASHWANT KUMAR Date: 2022.12.12 17:15:37 IST Reason: Location: High Court of Judicature at Allahabad