Allahabad High Court
Kallu vs State Of U.P. Thru. Secy. Home Deptt. ... on 12 July, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:44964 Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8722 of 2023 Applicant :- Kallu Opposite Party :- State Of U.P. Thru. Secy. Home Deptt. Lko. And 3 Others Counsel for Applicant :- Mohd. Ghufran Khan Counsel for Opposite Party :- G.A. Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the applicant and the learned AGA. No one appears on behalf of the complainant despite notice.
The FIR in question was lodged against the applicant, who is aged about 65 years alleging that on 16.5.2023 at about 8:45 PM the daughter of the informant was taken by the applicant by inducing her for giving a toffee, and thereafter, in his house he tied the mouth of the child with a cloth and removed her under garments as well as his under garments and was about to commit offence under Section 376 IPC. On information received from the son of the informant she rushed at the spot and saw that the child as well as the applicant were without under garments and the applicant was about to lie on over the child and at that moment she saved her child and raised hue and cry and could save her child. The victim was taken for medical examination and the averments contained in the FIR was also disclosed before the medical authority to the effect that the applicant had made the daughter of the informant lie on the floor and removed her under garments and his under garments and at that moment the applicant reached and could save her daughter. No injury marks were shown in the medical report, which is on record. In the statement under Section 161 CrPC the informant changed her statement to state that on the day of the incident, on information received from the son of the informant, she rushed to the house of the applicant and saw that the victim was lying on the floor without under garments and the applicant was also without his under garments and was trying to rub her private parts and on that moment the informant caught hold the hand of the applicant and could save her child. The statement of the victim was also recorded under Section 164 CrPC, however, she was not found able to give any statement. Thus, in view of the averment contained in the FIR, the statement given before the medical authority as well as the statement under Section 161 CrPC, the applicant is in custody since 17.5.2023.
Learned counsel for the applicant argues that from the allegations levelled in the FIR even if the same is treated to be gospel truth for the sake of argument it does not constitute any offence as defined under Section 375 IPC or come within the definition of penetrative sexual assault as defined under Section 3 of the POCSO Act so as to implicate the applicant either under Section 376-AB IPC or 5m/6 of the POCSO Act. He argues that on account of the fact that the family of the victim were unable to clear the dues of the applicant as he is running a grosary shop the entire story is cooked up against the applicant. He argues that the applicant is aged about 65 years and has been falsely implicated. He draws my attention to the fact that the informant herself got the FIR registered. She was present at the time of medical examination and also gave her statement. However, it appears that on account of tutor she manipulated her statement under Section 161 CrPC. It is further argued that the applicant has no criminal antecedent.
Learned AGA, on the other hand, strongly opposes the bail application by arguing that the victim is about 3 years of age and thus, this offence has to be viewed very seriously considering the age of the victim, who is unable to defend herself. He argues that offence can come under Section 3(c) of the POCSO Act.He has also pointed out that report of the Child Welfare Committee before whom, the informant had given her statement and no such statement of rubbing of private parts was indicated by the informant before CWC also. The said report of CWC was shown by the learned AGA across the bar.
Considering the submissions made at the bar coupled with the fact that no one appears on behalf of the complainant despite notice, on perusal of the document, it is clear that while recording the averment in the FIR no allegation with regard to rubbing the private parts of the victim was made. No such allegation was levelled by the mother before the medical authority and for the first time in the statement under Section 161 CrPC the averment was made. The validity and the correctness of the statement under Section 161 CrPC cannot be seen at this stage and has to be seen at the time of trial, however, the facts remain that there is clear variance of statements in the FIR, the statement before the medical authority statement before CWC as well as the statement under Section 161 CrPC. The applicant is aged about 65 years and has no criminal antecedent. There is nothing on record to demonstrate that the applicant if enlarged on bail can adversely affect the trial. Prima facie finding, the information contained in the FIR, not attracting the offence under Section 376-AB IPC or 5m/6 of the POCSO Act at this stage, the applicant is enlarged on bail.
Let the applicant Kallu be released on bail in Case Crime No.128 of 2023, under Sections 376-AB IPC and 5m/6 of the POCSO Act, Police Station Kotwali Utraula, District Balrampur on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
Order Date :- 12.7.2023 KR