Allahabad High Court
Vishal vs State Of U.P.And 3 Others on 21 December, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24934 of 2022 Applicant :- Vishal Opposite Party :- State Of U.P.And 3 Others Counsel for Applicant :- Piyush Kumar Shukla,Sunil Dubey Counsel for Opposite Party :- G.A.,Arbind Kumar Soni,Rakesh Kumar Shukla Hon'ble Rajeev Misra,J.
1. Heard Mr. Sunil Dubey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rakesh Kumar Shukla, the learned counsel for first informant.
2. Perused the record.
3. This application for bail has been filed by applicant-Vishal seeking his enlargement on bail in Case Crime No. 274 of 2022, under Sections 363, 376(3), 506 I.P.C. and Sections 3/4 POCSO Act, Police Station-Kotwali, District- Jhansi, during the pendency of Special Case No. 274 of 2022 ( State Vs. Vishal) under Sections 363, 376(3), 506 I.P.C. and Sections 3/4 POCSO Act, Police Station-Kotwali, District- Jhansi, now pending in the Court of Special Judge (POCSO Act), Jhansi.
4. Record shows that in respect of an incident, which is alleged to have occurred on 19.01.2022, a delayed F.I.R. dated 22.01.2022 was lodged by first informant Pradeep Soni (alleging himself to be the Phoopha of the prosecutrix) and was registered as Case Crime No. 274 of 2022, under Sections 342, 354, 354 (Ga), 506 I.P.C. and Sections 7/8 POCSO Act, Police Station-Kotwali, District- Jhansi. In the aforesaid F.I.R. applicant-Vishal 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 14.01.2022, named accused-Vishal (applicant herein) dislodged the modesty of the prosecutrix, who is said to be a student of Class 12 and her date of birth is mentioned as 02.04.2006.
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. who has supported the F.I.R. Thereafter, the statement of the wife of first informant namely, Smt. Anju Verma was recovered under section 161 Cr.P.C. who has also supported the F.I.R. This was followed by the statement of prosecutrix as recorded under section 161 Cr.P.C. wherein prosecutrix has not only supported the F.I.R. but also detailed the manner of occurrence giving rise to present criminal proceeding. The relevant part of statement of prosecutrix recorded under section 161 Cr.P.C. regarding her reliability and credibility is reproduced herein-under:-
"eSa Ldwy xà ogka eSus pijklh vady dks crk;k rks mUgksus Äj ij lwpuk nh rks esjs Hkkà eq>s ysus vk;s rks eSa"
7. Thereafter, Prosecutrix was requested for her medical examination which was refused by her. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C. wherein she attempted to rejoin her earlier statement under section 161 Cr.P.C. Following part of her statement under section 164 Cr.P.C. regarding credibility and reliability reads as under :-
"fQj esjs QwQk tks iznhi lksuh dk Qksu fo'kky ds ikl vk;k Fkk rks fo'kky eq>s okil isVªksy iai ipdqà NksM vk;k Fkk tgvk ls eq>s esjs HkS;~;k vafdr lksuh iq= iznhi lksuh o esjs mijksDr Qwivk th ysus vk x;s FksaA"
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. He accordingly, submitted the charge-sheet dated 15.04.2022 whereby applicant has been charge-sheeted under Sections 363, 376(3), 506 I.P.C. and Sections 3/4 POCSO Act. upon which cognizance was taken by concerned Magistrate. Resultantly, aforementioned Special Case came to be registered. The charges have been framed but no prosecution witness has been examined till date.
9. Present application for bail came up for orders on 08.12.2022 and this court passed the following order :-
"Supplementary affidavit and rejoinder affidavit filed by the learned counsel for applicant in Court today, are taken on record.
Heard Mr. Yogendra Mishra, Advocate, holding brief of Mr. Sunil Dubey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rakesh Kumar Shukla, the learned counsel for first informant.
After some arguments, it transpires that prosecutrix is a habitual complainant. Upto this stage, the record details following F.I.Rs.:-
(1) Case Crime No. 0041 of 2022, under Sections 342, 354, 354(c), 506 IPC and Sections 7/8 POCSO Act, P.S. Kotwali, District Jhansi (2) Case Crime No. 0032 of 2018, under Sections 354 (a) (1) (iv), 506 IPC and Sections 7/8 POCSO Act, P.S. Kotwali, District Jhansi (3) Case Crime No. 00390 of 2022, under Sections 354, 352. 504, 506 IPC and Sections 7/8 POCSO Act, P.S. Kotwali, District Jhansi (4) Case Crime No. 0424 of 2022, under Sections 452, 354, 323, 504, 506 IPC, P.S. Kotwali, District Jhansi The date of occurrence giving rise to present application for bail is said to be 19.01.2022 and the date of birth of he prosecutrix as per educational record, photo copy of which is on record as Annexure 6 to the affidavit is 2.4.2006. As such, on the date of occurrence, the prosecutrix was aged about 15 years, 9 months and 17 days. The F.I.R. giving rise to the present proceedings further records that applicant is alleged to have followed the prosecutrix for the last one year from the date of occurrence. If the aforesaid assertion is taken as correct, then prosecutrix was then aged about 14 years 9 months and 17 days.
In view of above, the Court thinks that criminal proceedings have been engineered as a tool of fallacious prosecution. Accordingly, Senior Superintendent of Police Jhansi is directed to file his personal affidavit annexting with the same record of all the F.I.Rs. which have been lodged by the prosecutrix or his custodial/parents and the High School Certificate of the prosecutrix.
Matter shall re-appear as fresh on 19.12.2022 as the first case in the list of fresh cases.
Copy of the order shall be suplied to the learned A.G.A. within 24 hours.
Order Date :- 8.12.2022 "
10. Pursuant to above order dated 08.12.2022, the Senior Superintendent of Police, Jhansi has filed his personal affidavit in court today, which is taken on record. As per the averments made in the aforesaid affidavit filed by Senior Superintendent of Police, Jhansi, five criminal cases appear to have been lodged by prosecutrix or on her behalf by present informant against applicant and others. Details of same is being tabulated herein under :-
(1) Case Crime No. 0041 of 2022, under Sections 342, 354, 354(c), 506 IPC and Sections 7/8 POCSO Act, P.S. Kotwali, District Jhansi (2) Case Crime No. 0011 of 2022, under Sections 506, 363, 376 (3), 120 B, 368, 504, IPC and Sections 3/4 POCSO Act, P.S. Kotwali, District Jhansi (3) Case Crime No. 0032 of 2018, under Sections 354 (a) (1) (iv), 506 IPC and Sections 7/8 POCSO Act, P.S. Kotwali, District Jhansi (4) Case Crime No. 00390 of 2022, under Sections 354, 352. 504, 506 IPC and Sections 7/8 POCSO Act, P.S. Kotwali, District Jhansi (5) Case Crime No. 0424 of 2022, under Sections 452, 354, 323, 504, 506 IPC, P.S. Kotwali, District Jhansi
11. Learned counsel for applicant submits that though the applicant is a named as well as charge-sheeted accused but he is innocent. Applicant is the neighbour of the first informant. It is next contended that it is an admitted case of the first informant that parents of prosecutrix had died. However, there is no document on record to establish that the first informant is legally/appointed guardian of the prosecutrix. There is no medical evidence on record to support the prosecution case. In view of above, no offence under section 376 I.P.C. can be said to have been commuted by applicant.
12. Learned counsel for the applicant has then invited the attention of court to the statements of prosecutrix as recorded under Sections 161/164 Cr.P.C., and on the basis thereof, he submits that prosecutrix in her aforesaid statements has not remained consistent. It is then contended that there is no medical evidence to corroborate the commission of offence under Section 376 I.P.C. and Sections 3/4 POCSO Act. According to the learned counsel for applicant prosecution can be maintained for an offence under Section 376 I.P.C. and Sections 3/4 even in the absence of medical evidence, on the basis of oral testimony of the prosecutrix/victim provided the statement of the victim/prosecutriex are categorical, consistent and thus of impeccable character. When the statements of prosecutrix are taken as a whole, the same are neither consistent nor categorical but are inconsistent and contradictory. As such, no prosecution of applicant can be maintained on the basis of above. To lend legal support to his submission, he has relied upon the judgement of Apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74. According to learned counsel for the applicant, the first informant is an Advocate by profession. Occurrence giving rise to present application is alleged to have occurred on 19.1.2022 whereas the F.I.R. was lodged on 22.1.2022. As such, there is a delay of almost four days in lodging the F.I.R. However, neither in the F.I.R. nor in the statement of the first informant, the delay in lodging the F.I.R. has been explained. Since the delay in lodging the F.I.R. has not been explained, the prosecution of applicant itself cannot be maintained by virtue of law laid down in paragraph 8 of the Judgment of Apex Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866. According to learned counsel for the applicant, the allegations with regard to commission of rape upon prosecutrix by applicant is conspicuous by it's absence in the F.I.R.. As such, prosecution of applicant is not only false but also malicious. The F.I.R. was lodged on the information given by prosecutrix herself. It is also contented by learned counsel for applicant that conduct of first informant and the prosecutrix do not appear to be fair inasmuch as five F.I.Rs. have been lodged by first information or prosecutrix against the applicant and others wherein nature of allegations is same. The statements of prosecutrix recorded under Sections 161/164 when taken as a whole do not fall in the category of impeccable evidence. It is lastly contended that applicant is a man of clean antecedent inasmuch as he has no criminal history except the present one. Applicant is in jail since 26.01.2022. As such, he has undergone more than eleven 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 the course of the trial. On the cumulative strength of above, he submits that applicant is liable to be enlarged on bail
13. Per contra, the learned A.G.A. for state and Mr. Rakesh Kumar Shukla, the learned counsel for first informant have opposed the present application for bail. They submit that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any sympathy of this court. It is then contended that applicant has been charge sheeted under section 3/4 POCSO Act. Since the prosecutrix was below 16 years of age, therefore, applicant does not deserve any indulgence by this court. Reference has also been made to section 6 of POCSO Act. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, upto this stage.
14. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel for first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that as many as five F.I.Rs. have been lodged by first informant/prosecutrix against applicant and others, allegations made in aforesaid F.I.Rs. are substantially same, as per prosecution case the prosecutrix is said to be aged about 15 years and 7 months on the date of occurrence, the inconsistency in the statements of prosecutrix recorded under section 161/164 Cr.P.C. the delay in lodging the F.I.R. having not been unexplained in the F.I.R. nor in the statement of first informant/prosecutrix, there is no medical evidence to support the ocular version of the occurrence, when the statements of prosecutrix recorded under section 161/164 Cr.P.C. are taken as a whole, the same do not fall in the category of impeccable character but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
15. Accordingly, present application for bail is allowed.
16. Let the applicant-Vishal 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.
17. 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 :- 21.12.2022 YK