Allahabad High Court
Abrar vs State Of U.P. And 3 Others on 31 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:153115 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33427 of 2023 Applicant :- Abrar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Anuj Kumar Gupta Counsel for Opposite Party :- G.A.,Chandra Bhan Kushwaha Hon'ble Rajeev Misra,J.
1. Heard Mr.Anuj Kumar Gupta, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by the applicant Abrar seeking his enlargement on bail in Case Crime No. 162 of 2023, under Sections 376DA, 323 IPC and Section 5G/6 POCSO Act, Police Station Bisauli, District Badaun during the pendency of trial.
4. At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informant opposite party 2 on 24.7.2023. However, in spite of service of notice no one has put in appearance on behalf of opposite party 4 to oppose this application for bail.
5. Record shows that in respect of an incident which is alleged to have occurred on 15.3.2023, a prompt F.I.R. dated 15.3.2023 was lodged by first informant Mor Kali (prosecutrix) and was registered as Case Crime No. 162 of 2023, under Sections 376DA, 323 IPC and Section 5G/6 POCSO Act, Police Station Bisauli, District Badaun. In the aforesaid F.I.R two persons namely (i) Israr (ii) Abrar (applicant herein), (iii) Arif and (iv) son-in-law of Asharfi have been nominated as named accused.
6. The gravamen of the allegations made in the F.I.R. is to the effect that named accused on 14.3.2023 dragged the prosecutrix and thereafter deliberately and forcibly dislodged her modesty by committing rape upon her.
7. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr.P.C. The statement of prosecutrix was recorded under Section 161 Cr.P.C. The same is on record at pages 29/30 of the paper book. The prosecutrix in her aforesaid statement has supported the F.I.R. However she nominated one Israr for having dislodged her modesty. Thereafter prosecutrix was requested for her medical examination. The prosecutrix in her statement before the doctor who medically examined her reiterated her earlier statement recorded under Section 161 Cr.P.C. The doctor who medically examined the prosecutrix did not find any injury on her body. However with regard to private part of the prosecutrix, the doctor has opined as follows:-
"Hymen torned and healed."
8. Certain samples were taken from the body of the prosecutrx for pathological examination. However the result of the same is in negative. As per the medical opinion, the prosecutrix is aged about 16 years. Ultimately the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein she has not only supported the F.I.R. but has also detailed the manner of occurrence. It is apposite to mention here that the prosecutrix has made a departure from her earlier statement under Section 161 Cr.P.C. regarding the manner of occurrence. During course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. The mother of the prosecutrix has completely supported the F.I.R. On the basis of above and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant alongwith others is established in the crime in question. He, accordingly, submitted the charge sheet dated 9.4.2023 whereby all the named accused have been charge sheeted.
9. Learned counsel for applicant contends that thought the applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. Applicant is innocent and has been falsely implicated in the crime in question. Allegations made in the F.I.R. are false and concocted. The prosecution story is highly improbable and therefore unworthy of reliance. The medical evidence does not support the ocular version of the occurrence. The prosecutrix has departed from her statement under Section 161 Cr.P.C. in her subsequent statement under Section 164 Cr.P.C. for which no explanation has come forward. Applicant is in jail since 31.3.2023. As such he has undergone four months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. However up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant. Even otherwise applicant is a man of clean antecedents having no criminal history to his credit except the present one. 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 cooperate with the trial.
10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix in her statements under Section 161/164 has not only supported the F.I.R. but has also given the manner of occurrence. The statement of prosecutrix under Section 164 Cr.P.C. is clearly corroborated by the statement of the mother of the prosecutrix who was present at the time and place of occurrence. Criminality committed by named and charge sheeted accused is joint and common. Therefore, it is incapable of being separated or segregated. Applicant along with co-accused is guilty of dislodging the modesty of prosecutrix who is a young girl aged about 16 years as per medical opinion. Up to this stage there is nothing on record to infer innocence of applicant or the false prosecution of applicant or to doubt the credibility of prosecutrix either. He, therefore, contends that no sympathy be shown by this Court in favour of applicant.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State, and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that the prosecutrix in her statements under Section 161/164 Cr.P.C. has supported the F.I.R. in view of the law laid down by the Apex Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74. prosecution of an accused for an offence of rape or sexual assault can be maintained even in the absence of medical evidence. The prosecutrix is a young girl aged about 16 years whose modesty was deliberately and forcibly dislodged. The judgment of the Supreme Court in X (minor) Vs. State of Jharkhand and another (2022) Live Law (SC) 194, there being nothing on record to dislodge the credibility of the prosecutrix or to infer malicious or false prosecution of the applicant, but without making any comments on the merits of the case, this Court does not find any good ground to enlarge the applicant on bail.
12. As a result, present application for bail fails and is liable to be rejected.
13. It is, accordingly, rejected.
Order Date :- 31.7.2023 Aiman