Allahabad High Court
Anshu @ Anshu Diwakar vs State Of U.P. And 3 Others on 25 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:185950 Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39326 of 2023 Applicant :- Anshu @ Anshu Diwakar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vinay Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.
1. Sri Amarnath Vishwakarma, learned brief holder for the State apprised the Court that on 03.09.2023 notice has been served to the informant of the case. Despite service of notice, none appeared on behalf of the informant.
2. Heard Sri Vinay Kumar Mishra, learned counsel for the applicant and Sri Amarnath Vishwakarma, learned AGA for the State-respondent.
3. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 64 of 2023, under Sections 452, 376 IPC & 3/4 POCSO Act, Police Station- Ayana, District- Auraiya, during pendency of the trial in the court below.
4. FIR of the present case was lodged against applicant and according to the FIR, applicant committed rape with the daughter of the informant aged about 13 years.
5. Learned counsel for the applicant submitted that entire allegation of rape made against the applicant is totally false and baseless and although, in the FIR and in the statements of the victim recorded during investigation, her age was disclosed as 13 years but according to the CMO report, she was 17 years' old girl therefore, it appears that she was more than 18 years' old and from her both the statements recorded during investigation her consent is reflected.
6. He further submitted that applicant is not having any criminal history and he is in jail since 16.05.2023.
7. Per contra, learned AGA opposed the prayer for bail and submitted that victim is hardly 13 years' old girl and although, she is not literate girl but even according to her ossification test report, she was around 17 years' old and as there can be two years' variation from either side, therefore, it can also be said that victim was about 15 years' old and she in her statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. stated against the applicant and did not state that she was having love affair with the applicant.
8. I have heard both the parties and perused the record of the case.
9. Although, from the CMO report, it appears that at the time of incident, victim was around 17 years' old but according to the victim and informant, she was around 13 years' old.
10. Further, victim in her both the statements recorded under Section 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape against the applicant and in the entire bail application applicant did not state that he was having love affair with the victim and, therefore, no inference can be drawn at this stage that victim and applicant were having love affair and when victim was caught red-handed along with the applicant then he has been made accused in the present matter.
11. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is not entitled to be released on bail.
12. Accordingly, the instant bail application is rejected.
13. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 25.9.2023 KK Patel