Allahabad High Court
Pitamber @ Pitu @ Praveen vs State Of U.P. And 3 Others on 19 December, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:240502 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37641 of 2023 Applicant :- Pitamber @ Pitu @ Praveen Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ramdhan,Pushpendra Kumar Counsel for Opposite Party :- G.A.,Aarushi Khare Hon'ble Rajeev Misra,J.
1. Heard Mr. Ramdhan, the learned counsel for applicant and Mr. Prashant Kumar, the learned A.G.A. for State. Though the name of Miss Aarushi Khare is duly published in the cause list, however neither she nor any one on her behalf is present to oppose this application for bail.
2. Perused the record.
3. Present application for bail came up for order on 12.12.2023 and this Court passed the following order:-
"1. Heard Mr. Ramdhan, the learned counsel for applicant and the learned A.G.A. for State.
2. Present application for bail came up for orders on 31.10.2023 and this Court passed the following order:-
"Heard Mr. Ramdhan, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Pitamber @ Pitu @ Praveen seeking his enlargement on bail in Case Crime No. 120 of 2023, under Sections 342, 354, 354A, 354D, 376D, 504, 506 IPC and Sections 5/6, 7/8 PCOSO. Act, P.S. Sikandrarau, District Hathras, during the pendency of trial.
After some arguments, it transpires that the age of the prosecutrix has been determined with reference to the date of birth of the prosecutrix mentioned in the scholar register/transfer certificate. As per the said documents, the date of birth of the prosecutrix is said to be 08.09.2008.
Prima facie, the determination of age of the prosecutrix made with reference to above mentioned documents is manifestly illegal. By virtue of the provisions contained in Section 94 of Juvenile Justice (Care and Protection of Children) Act, 2015, the age of the prosecutrix could be determined only with reference to her date of birth mentioned in any of the documents recognized under Section 94 (2) (i) and 94 (2) (ii) of the Act, 2015. There is no document on record regarding the date of birth of the prosecutrix in consonance with the provisions of Section 94 of Act, 2015.
Learned A.G.A. submits that charge sheet has been submitted on 29.4.2023.
In view of above, Investigating Officer is directed to submit an application under Section 173 (8) Cr. P. C. before Court concerned seeking the permission of Court to conduct further investigation. After permission has been accorded by the Court concerned, the Investigating Officer shall proceed to discover the date of birth of the prosecutrix recorded in the institution first attended by her and also any such document which is in consonance with the provisions of Section 94 of the Act, 2015 regarding the date of birth of the prosrecutrix. The necessary exercise shall be completed within a period of three weeks from today. The copy of the supplementary case diary shall be transmitted to this Court through the learned A.G.A. before the next date fixed.
Matter shall, accordingly, re-appear as fresh on 23.112023."
3. Since the order dated 31.10.2023 was not complied with, therefore, adjournment was prayed by the learned A.G.A. on the next date i.e. 23.11.2023. Accordingly, the matter was adjourned. Court passed the following order dated 23.11.2023;-
"1. On the matter being taken up, the learned A.G.A prays for and is granted a week's time to file an affidavit of compliance to bring on record the subsequent material collected by the Investigating Officer pursuant to order dated 31.10.2023.
2. In view of above, the hearing of present application is adjourned.
3. Matter shall accordingly re-appear for orders as fresh on 30.11.2023.
4. Supplementary affidavit filed by learned counsel for applicant in court today, is taken on record."
4. Subsequent to above order, the matter is listed today. Today again the learned A.G.A. submits that the order dated 31.10.2023 has not been complied with.
5. In view of above, it is apparent that Investigating Officer is proceeding with the matter in a cavalier fashion.
6. Accordingly, let the Superintendent of Police, Hathras appear in person along with the case diary of concerned case crime number as well as the additional material that has been collected pursuant to the order dated 31.10.2023.
7. Matter shall re-appear on 19.12.2023 as fresh at 02:00 P.M"
4. In compliance of above order dated 12.12.2023, the Investigating Officer and the Additional Superintendent of Police, Hathras are present in Court today.
5. Mr. Prashant Kumar, the learned A.G.A. has filed the personal affidavits of Investigating Officer, Superintendent of Police and Additional Superintendent of Police, which are taken on record.
6. Mr. Prashant Kumar, the learned A.G.A. fairly submits that on account of Hathras Mahotsav in progress, it is impossible for the Superintedent of Police, Hathras to leave the station.He has therefore, filed his personal affidavit seeking indulgence of this Court. However, the Additional Superintendent of Police has been deputed to appear before this Court. Considering the explanation offered by the Superintendent of Police, his personal appearance is exempted.
7. Perused the affidavit filed by the Additional Superintendent of Police and the Investigating Officer. The Court finds that in view of the averments made in the affidavits filed by the aforesaid officers, their personal appearance is also not required on future dates. Accordingly, their personal appearance on future is also exempted.
8. This application for bail has been filed by applicant-Pitamber @ Pitu @ Praveen seeking his enlargement on bail in Case Crime No. 120 of 2023, under Sections 342, 354, 354-A, 354-D, 376-D, 504, 506 IPC and Sections 5/6, 7/8 POCSO Act, Police Station-Sikandrarau, District-Hathras during the pendency of trial.
9. At the very outset, the learned A.G.A. submits that notice of present application for bail has already been served upon first informant-opposite party 2 on 17.08.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party 2 to oppose this application for bail.
10. Record shows that in respect of an incident, which is alleged to have occurred on 20.03.2023, a delayed FIR dated 21.03.2023 was lodged by first informant-Rakesh Kumar (father of the prosecutrix) and was registered as Case Crime No. 120 of 2023, under Sections 342, 354, 354-A, 354-B, 376, 511, 504, 506 IPC and Sections 7/8/18 POCSO Act, Police Station-Sikandrarau, District-Hathras. In the aforesaid FIR, 3 persons namely (1) Prem Singh, (2) Pawan and (3) Pitu have been nominated as named accused.
11. The gravamen of the allegations made in the FIR is to the effect that named accused Prem Singh and Pawan deliberately and forcibly dislodged the modesty of the prosecutrix.
12. 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 statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 49 of the paper book. The prosecutrix in her aforesaid statement has fully supported the FIR. Thereafter, the prosecutrix was requested for her internal medical examination. The Doctor, who medically examined the prosecutrix, did not find any injury on her body so as to denote commission of deliberate or forceful sexual assault. No adverse opinion was formed by the Doctor with regard to the private part of the prosecutrix either. The Urine Pregnancy Test of the prosecutrix was conducted. The result of the same is in negative.
13. During course of investigation, Investigating Officer recovered the School Leaving Certificate of the prosecutrix wherein the date of birth of the prosecutrix is mentioned as 08.09.2008. The occurrence giving rise to present criminal proceedings occurred on 20.03.2023. As such, the prosecutrix was aged about 14 years, 6 months and 12 days. Investigating Officer further examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantilly 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 all the named accused is established in the crime in question. He, accordingly, submitted the charge sheet dated 29.04.2023 whereby 2 of the named accused i.e. Pitamber @ Pitu @ Praveen and Prem Singh have been charge sheeted under Sections 342, 354, 354-A, 354-B, 376-D, 504, 506 IPC and Sections 5/6, 7/8 POCSO Act whereas once of the named accused Pawan @ Deepu @ Bachcha has been declared juvenile for which the charge sheet has been sent to Junvenie Justice Board on 29.04.2023..
14. Subsequent to the order dated 31.10.2023 passed by this Court, Investigating Officer conducted further investigation and the date of birth of the prosecutrix recorded in the institution first attended by her has also been recovered which is 08.09.2008.
15. Learned counsel for applicant contends that though the applicant is named as well as charge sheeted accused yet he is liable to be enlarged on bail. The medical evidence does not support the ocular version of the occurrence as disclosed in the statements of the prosecutrix recorded under Section 161 Cr.P.C, before the Doctor, who medically examined the her and under Section 164 Cr.P.C. He, therefore, contends that applicant is liable to be enlarged on bail.
16. 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 17.04.2023. As such, he has undergone more than 8 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 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.
17. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix in her statements recorded under Section 161 Cr.P.C., before the Doctor, who medically examined her and under Section 164 Cr.P.C. has clearly supported the FIR. She has also described the act of applicant including the manner in which, criminality was committed upon her. Since the prosecutrix is a young girl of tender age and below 16 years of age, therefore, it cannot be said that the present criminal proceedings are false or malicious accentuated by mala-fide. There is nothing on record to infer the innocence of applicant either. As such, on sympathy be shown by this Court in favour of applicant.
18. When confronted with above, the learned counsel for applicant could not overcome the same.
19. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that the prosecutrix is a young girl aged about 14 years, 6 months and 18 days, the learned counsel for applicant could not contradict the age of the prosecutrix from any other material, the prosecutrix in her statements under Section 161 Cr.P.C., before the Doctor, who medically examined her and under Section 164 Cr.P.C. has clearly implicated the applicant for the criminality committed upon her, she has also detailed the manner of occurrence, in view of the law laid down by the Apex Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74, the prosecution of an accused for an offence of rape and sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix, however, the statement of prosecutrix showed clear and specific, when the statements of the prosecutrix referred to above are taken as a whole and examined in the light of above, it cannot be said that the same suffer from the vice of exaggeration, embellishment and contradiction but to the contrary, they are clear, categorical and consistent i.e. unambiguous, as such, the statements of the prosecutix are of impeccable character, there is nothing on record to infer that the prosecution of applicant is false or malicious being accentuated by mala-fide, there is nothing to infer the innocence of applicant either, 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.
20. As a result, present application for bail fails and is liable to be rejected.
21. It is accordingly rejected.
Order Date :- 19.12.2023 Vinay