Allahabad High Court
Vijay vs State Of U.P. And 3 Others on 6 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:176094 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37783 of 2023 Applicant :- Vijay Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shailendra Singh,Abhishek Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Abhishek Singh, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Vijay seeking his enlargement on bail in Case Crime No.46 of 2023, under Sections 363, 366, 504, 506, 342, 376 IPC, 3(1) R & 3(1) S, 3(2) 5, 3(2) 5A SC/ST Act and Section 3/4 Pocso Act, police station Sadh, district Kanpur Nagar, during the pendency of trial.
Perused the record.
At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon the first informant-opposite party-4 on 01.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party-4 to oppose the application for bail.
Record shows that in respect of an incident which is alleged to have occurred on 03.03.2023, a delayed first information report dated 10.03.2023 was lodged by first informant-Surendra Kumar Kureel (father of the prosecutrix) and was registered as Case Crime No.0046 of 2023, under Section 363 IPC, police station Sadh, district South (Commissionerate Kanpur Nagar). In the aforesaid F.I.R., an un-known person has been arraigned as solitary accused.
The gravamen of the allegations made in the first information report is to the effect that an un-known boy enticed away the minor daughter of the first informant, namely, X aged about 16 years on 03.03.2023 when she had gone out to attend high school paper at Pathik Inter College.
After aforesaid first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The prosecutrix was recovered on 12.04.2023 i.e. after one month and nine days of the incident. Thereafter, the statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 62 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, she stated that she herself accompanied the applicant and travelled from Kanpur and thereafter from Kanpur to Jhansi and ultimately to Hyderabad. They stayed there together. The prosecutrix further stated that thereafter she solemnized marriage with the applicant in a temple. As a consequence of above the relationship between the parties became as that of husband and wife. It is on account of above that the parties were in co-habitation and lived as husband and wife. She further stated that physical relations were maintained with the prosecutrix by the applicant admittedly upon the consent of the prosecutrix itself. Thereafter, the prosecutrix was requested for her internal medical examination. In her statement before the Doctor, who medically examined her, the prosecutrix has departed from her previous statement recorded under Section 161 CrPC and has now alleged kidnapping against the present applicant. The Doctor who medically examined the prosecurix however did not find any signs on her body so as to denote commission of sexual assault. However, with regard to the private part of the prosecutrix, the Doctor has opined as follows :-
"Hymen - Ruptured, old and healed"
Certain samples were taken from the body of the prosecutrix for pathological examination. However, as per the supplementary medical report of the prosecutrix, the opinion of pathologist is as follows :-
"Serology HBsAg Rapid : Positive Refer to GSUM for medical collection for ELISA.
VDRL Test : Negative.
Clinical Pathology Pregnancy test, Urine pregnancy test : Negative."
Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 65 of the paper book wherein she has departed from her earlier statement recorded under Section 161 CrPC. The prosecutrix in her aforesaid statement has narrated a story which is totally alien to her previous statement under Section 161 CrPC. During the course of investigation, Investigation Officer recovered the School Leaving Certificate of the prosecutrix of Class-V, wherein her date of birth is recorded as 08.01.2006. The occurrence giving rise to the present criminal proceeding occurred on 03.03.2023. As such, the prosecutrix was aged about 17 years and one month on the date of occurrence. Investigating Officer also examined the first informant and other witnesses under Section 161 CrPC, who have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. Accordingly, he submitted the charge-sheet dated 02.06.2023, whereby applicant has been charge-sheeted under Sections 363, 366, 504, 506, 342, 376 IPC, 3(1) R & 3(1) S, 3(2) 5, 3(2) 5A SC/ST Act and Section 3/4 Pocso Act.
Learned counsel for the applicant contends that even though the applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. Referring to the provisions of Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, learned counsel for applicant contends that the date of birth of the prosecutrix can be determined only in accordance with the procedure provided in the aforesaid Section. Since under the provisions of the aforesaid Act, it is not provided that the date of birth of the prosecutrix can be determined on the basis of School Leaving Certificate, therefore it cannot be said on the basis of said document that the prosecutrix was below 18 years of age on the date of occurrence. With reference to the material on record he contends that the prosecutrix is a willing and consenting party as per the statement of the prosecutrix recorded under Section 161 CrPC. He further contends that the prosecutrix has solemnized marriage with the applicant. Even though the prosecutrix was below 18 years of age (aged about 17 years and one month) as per the date of birth recorded in the School Leaving Certificate on the date of her marriage with the applicant but simply on that ground the marriage of the prosecutrix with applicant shall not be void but voidable at the instance of the prosecutrix as per the provisions contained in Section 11(2) of the Hindu Marriage Act, 1955. It is on account of above that physical relations were maintained between the parties therefore, no offence as complained of can be said to have been committed by the applicant. However, up to this stage, nothing has emerged on record to show that the prosecutrix has initiated any proceeding for declaration of her marriage with the applicant as void. Even otherwise, applicant is a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. The applicant is in jail since 18.04.2023. As such he has undergone more than four months of incarceration. The police report under Section 173(2) CrPC has already been submitted against the applicant, therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. The only evidence that has emerged against the applicant is the subsequent statement of the prosecutrix recorded under Section 164 CrPC wherein she has departed from her previous statement under Section 161 CrPC. The embellishment, contradiction and exaggeration that has emerged in the subsequent statement of the prosecutrix as noted above remains unexplained up to this stage. He, therefore, contends that when the aforesaid test is applied to the facts of the present case and the statements of the prosecutrix referred to above are examined as a whole then they do not fall in the category of impeccable evidence and therefore un-worthy of reliance. As such, no prosecution of the applicant can be maintained on the basis of above. To buttress his submission he has referred to the judgement of the Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74. He, therefore, contends 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.
Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this court. The prosecutrix is a young girl aged about 17 years and one month therefore her consent, if any, is immaterial. However, he could not dislodge the factual and legal submissions urged by the learned counsel for the applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, coupled with the fact that the prosecutrix in her subsequent statement recorded under Section 164 CrPC has departed from her earlier statement recorded under Section 161 CrPC, the embellishment, contradiction and exaggeration appearing in the subsequent statement of the prosecutrix as noted above remains unexplained up to this stage, the prosecutrix in her aforesaid statement has narrated a story which is totally alien to her previous statement under Section 161 CrPC, the age of the prosecutrix could not be concluded as per the entry regarding the date of birth occurring in the School Leaving Certificate of the prosecutrix by virtue of the provisions contained in Section 94 of The Juvenile Justice (Care and Protection of Children) Act, 2015, no other document has been produced by the learned A.G.A. from the record to establish that the prosecutrix was below 18 years of age on the date of occurrence, the police report under Section 173 (2) CrPC has already been submitted, therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, but the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of the applicant during the pendency of trial, judgement of the Apex Court in the case of Sumit Subhashchandra Gangwal and Another Vs. State of Maharashtra and Another 2023 LiveLaw (SC) 373 (paragraph 5), prima facie the prosecutrix is major, learned A.G.A. could not contradict the recital contained in the statement of the prosecutrix recorded under Section 161 CrPC, the clean antecedents of the applicant, the period of incarceration undergone, but without making any comments on the merit of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Vijay, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 6.9.2023.
Rks.