High Court
Case Details
Neutral Citation No. - 2023:AHC:234906 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44588 of 2023
Legal Reasoning
5.Pursuant to above order dated 31.10.2023, the ossification test of the prosecutrix was conducted. As per the medical opinion, the prosecutrix is said to be aged about 16 years. The original report has been sent to this Court in a sealed envelope, which is taken on record. 6. Record shows that in respect of an incident, which is alleged to have occurred on 30.06.2023, a prompt FIR dated 30.06.2023 was lodged by first informant-Banne Ali and was registered as Case Crime No. 235 of 2023, under Section 363 IPC, Police Station- Cant, District-Bareilly. In the aforesaid FIR, an unknown person have been arraigned as solitary accused. 7. The gravamen of the allegations made in the FIR is to the effect that daughter of the first informant namely X whose date of birth is 26.01.2008 has gone missing since 04:00 A.M. on 30.06.2023. 8. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 01.07.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 20 of the paper book. The prosecutrix in her aforesaid statement has clearly implicated the applicant in the crime in question by alleging that she was harassed by the applicant on phone. Subsequently, the prosecutrix was taken by the applicant to Ambedkarnagar where her modesty was dislodged. Thereafter, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor, who medically examined her, has rejoined her previous statement under Section 161 Cr.P.C. However, the Doctor, who medically examined the prosecutrix, did not find any injury on her person so as to denote commission of deliberate or forceful sexual assault. With regard to the private part of the prosecutrix, the Doctor has opined as follows:- Hymen - Fresh Tear" 9. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 43 of the paper book. The prosecutrix in her aforesaid statement has reiterated her previous statement under Section 161 Cr.P.C. 10. During course of investigation, Investigating Officer recovered the Transfer Certificate of the prosecutrix pertaining to Class-9 wherein the date of birth of the prosecutrix is mentioned as 26.01.2008. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 30.06.2023. As such, the prosecutrix was aged about 15 years, 5 months and 4 days on the date of occurrence. Investigating Officer further examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantially supported the FIR. 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 fully established in the crime in question. He, accordingly, submitted the charge sheet dated 26.08.2023 whereby applicant has been charge sheeted under Sections 363, 376(2)(N), 376(3) IPC and Sections 4(2), 5L/6 POCSO Act. 11. As per the ossification test, the age of the prosecutrix has been determined to be about 16 years. 12. Learned counsel for applicant contends that though the applicant is not named but charge sheeted accused yet he is liable to be enlarged on bail. The prosecutrix is a willing and consenting party inasmuch as, the prosecutrix has joined the applicant and accompanied him without shouting any statement. Furthermore, the medical evidence does not show commission of any deliberate or forceful sexual assault upon the prosecutrix. He, therefore, contends that applicant is liable to be enlarged on bail. 13. 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 jail since 01.07.2023. As such, he has undergone more than 5 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 14. Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. It is then contended that applicant is aged about 33 years whereas the prosecutrix is a young girl aged less then 16 years. Attention of the Court was then invited to the Medico Legal Examination Report of the prosecutrix and on basis thereof, it is urged that in view of the opinion expressed by the Doctor regarding the private part of the prosecutrix, the medical opinion clearly support the charge sheet. The prosecutrix in her statements under Sections 161/164 Cr.P.C. has clearly implicated the applicant for the crime in question. Referring to the judgment of Supreme Court in X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194, it is urged that since the prosecutrix was below 16 years of age whose modesty has been dislodged, therefore, even if the prosecutrix is a consenting party, no benefit can be deserved by the applicant from the same. It is thus urged that no sympathy be shown by this Court in favour of applicant. As such, the bail application is liable to be rejected. 15. When confronted with above, the learned counsel for applicant could not overcome the same. 16. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that since the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail. 17. As a result, present application for bail fails and is liable to be rejected. 18. It is accordingly rejected. 19. The original documents pertaining to the medical determination of age of the prosecutrix which have been sent to this Court shall be sent to the court below by the Registry in a sealed envelope within one week from today. Order Date :- 11.12.2023 Vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad
Arguments
Applicant :- Vinod Maurya Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Awadhesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Ehtesham Afsar Khan Hon'ble Rajeev Misra,J. 1. Heard Mr. Awadhesh Kumar Srivastava, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ehtesham Afsar Khan, the learned counsel representing first informant-opposite party 2. 2. Perused the record. 3. This application for bail has been filed by applicant-Vinod Maurya seeking his enlargement on bail in Case Crime No. 235 of 2023, under Sections 363, 376(2)(N), 376(3) IPC and Sections 4(2), 5L/6 POCSO Act, Police Station-Cant, District-Bareilly during the pendency of trial. 4. Present application for bail came up for orders on 31.10.2023 and this Court passed the following order:- "1. C.J.M., Bareilly is directed to get ossification test of the victim conducted through C.M.O., Bareilly within period of two weeks and send the duly certified photostat copy of the same to this court. 2. Put up this case as a fresh case on 28.11.2023 before appropriate Bench."