Allahabad High Court
Sunil @ Bauwa vs State Of U.P. on 16 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55761 of 2021 Applicant :- Sunil @ Bauwa Opposite Party :- State of U.P. Counsel for Applicant :- Ram Sharan Giri Counsel for Opposite Party :- G.A.,Gyanendra Singh,Shyam Kumar Verma Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Ram Sharan Giri, learned counsel for the accused-applicant, Shri Gyanendra Singh, learned counsel for the informant/complainant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Sunil @ Bauwa, for grant of bail, in Case Crime No. 87 of 2021, under Sections 363, 366, 376, 506 I.P.C. and section 5/6 Protection of Children from Sexual Offence Act, Police Station- Kotwali Dehat, District- Banda, during trial.
Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.
It is further submitted that the F.I.R. in this case was lodged by the father of the prosecutrix on 05.05.2021 at police station Kotwali Dehat, District Banda stating therein that it was on 04.05.2021, the applicant had enticed away her daughter aged about 13 years and it was on 2nd September 2021. The prosecutrix was recovered from the custody of applicant from the District Court complex. Thereafter, statement of prosecutrix was recorded under sections 161 and 164 of the Cr.P.C., wherein the prosecutrix had stated her age as 19 years and that she had conducted/solemnized court marriage with the applicant and also that on 02.03.2021 at about 3 p.m. she had gone to meet the applicant and was seen by her brother namely Roshan and became apprehended and went with applicant on her own volition to Gujarat, where they remained stayed for few months as husband and wife and she is also stated to have pregnancy of two and half months. However, in her statement recorded under section 164 Cr.P.,C. she categorically stated that she was/is in love with the applicant and had gone with him with her free wish and volition and she had not been enticed away by the applicant. She was pregnant, however, her pregnancy had been terminated by her family members and she is apprehending that as the applicant and she belongs to different caste, her in-laws may be subjected to assault and may be involved in fake cases by her family members. The prosecutrix had also refused to undergo any medical examination.
Learned counsel for the applicant highlighting the above facts vehemently submitted that the story as put forth by the informant in the F.I.R. is belied by the statement of the prosecutrix recorded under sections 161 and 164 Cr.P.C., as she has categorically stated to have accompanied the applicant on her own free wish and will and that she was not enticed away and also that they had solemnized marriage.
It is further submitted that the age of the prosecutrix as per the Class-VIII certificate is about 12 years and 9 months, however, on the basis of the certificate issued by C.M.O., Banda of date 03.09.2021, on the basis of ossification test, the age of prosecutrix was determined as 17 years. A copy of Parivar register has been brought on record at page no. 70 wherein the year of birth of prosecutrix is shown as 2002 and therefore, in the light of the age determined through ossification test as well as the year of birth noted in the Parivar register, age of prosecutrix shown in her Class-VIII could not be believed and it is evident that prosecutrix was of consenting age at the time of incident. Applicant is in jail since 09.09.2021 and charge-sheet has already been filed. It is submitted that there is no apprehension that after being released on bail the applicant may flee from the course of law or may otherwise misuse the liberty.
Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed heinous offence and having regard to the manner in which the crime has been committed, he is not entitled to be released on bail. Learned counsel for the informant/complainant vehemently submitted that the prosecutrix is of very tender age and therefore, her consent or no consent is of no avail. It is also submitted that the applicant is accused of committing sexual intercourse with the girl of very tender age, therefore, he cannot escape the consequences and thus, the bail plea of the applicant is liable to be rejected.
Having heard learned counsel for the parties and having perused the record, it is evident that the prosecutrix in her statement recorded under sections 161 and 164 of the Cr.P.C., had stated her age to be of 19 years and also that she was in love with the applicant and had accompanied him on her free wish and volition and she was not enticed away by the applicant. She also stated that they had solemnized marriage with applicant and it was on 4th March, 2021, she was seen with the applicant by her brother and on being apprehended she had gone with applicant on her free wish and will to Gujarat, where they remained as husband and wife for many months. She also got pregnant, however, her pregnancy was terminated by her family members. Thus it is evident that the prosecutrix had accompanied the applicant with her own free wish and will. The age of the prosecutrix is stated to be about 13 years on the basis of Class-VIII certificate, however, the bone age of the prosecutrix has been assessed as 17 years by the C.M.O., Banda, a copy of the Parivar register pertaining to the family members of the prosecutrix has also been placed on record, wherein, year of birth of the prosecutrix is stated to be 2002 by which she also comes to be of 19 years at the date and time of the alleged incident. It is vehemently submitted on behalf of the applicant that the prosecutrix at the time of alleged incident was of consenting age and the veracity and difference of her age as is evident by educational certificate and parivar register could only be determined in the trial. No allegation of any kind has been leveled by the prosecutrix against the applicant. Applicant is in jail since 09.09.2021 without any previous criminal history. The presence of the applicant could be secured before the trial court by placing adequate conditions.
Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.
Let the accused/applicant- Sunil @ Bauwa involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.
Order Date :- 16.5.2022 Bhanu