Allahabad High Court
Jeetu vs State Of U.P. And 3 Others on 12 December, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56577 of 2022 Applicant :- Jeetu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sukesh Kumar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Sukesh Kumar, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Jeetu seeking his enlargement on bail in Case Crime No. 0292 of 2021, under Sections 363, 366, 376D, 506 IPC and Sections 3/4 POCSO Act, P.S. Bharthana, District Etawaha, during the pendency of trial.
Perused the record.
At the very outset, learned A.G.A. submits that notice issued to opposite party 2/informant has been served. However, in spite of service of notice upon opposite party 2 no one has put in appearance on her behalf to oppose the present application for bail.
Record shows that in respect of an incident, which is alleged to have occurred on 25.8.2021, a delayed F.I.R. dated 26.8.2021 was lodged by first informant Brajesh Kumar (father of the prosecutrix) and was registered as Case Crime No. 0292 of 2021, under Sections 363, 366 IPC, P.S. Bharthana, District Etawaha. In the aforesaid F.I.R., two persons namely Jeetu (applicant herein) and Sagar have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is that named accused Jeetu and Sagar enticed away the daughter of first informant on 25.8.2021, whose date of birth is 1.4.2004 .
After lodging of aforesaid F.I.R., the statutory investigation of concerned case crime number commenced. Investigating Officer first examined the first informant namely Brajesh Kumar, father of the prosecutrix, who has supported the F.I.R. The prosecutrix was recovered on 27.8.2021. Thereafter, her statement under Section 161 Cr. P. C. was recoded by Investigating Officer. The prosecutrix in her aforesaid statement has supported the F.I.R. However, she has also stated that named accused took away the prosecutrix on the false promise of marriage. They thereafter forcibly dislodged her modesty and by extending the use of threat committed rape upon her. Thereafter, the prosecutrix was requested for her medical examination. The prosecutrix in her statement before the Doctor has, however, resiled from her earlier statement recorded under Section 161 Cr. P. C. The prosecutrix has now stated that she herself accompanied the applicant Jeetu and maintained physical relation with him out of her own free will. The Doctor who examined the prosecutrix did not find any sign on her body so as to denote commission of physical assault. With regard to private part of the prosecutrix the Doctor opined as follows:-
Hymen Old healed, torn Upon completion of medical examination of the prosecutrix, the Doctor opined as follows:-
There are no sign of use of force/forceful penetration of vagina. However, final opinion reserved pending or the availability of F.S.L. report.
Certain samples were taken from the body of prosecutrix for pathological examination. However, the same show negative result. As per the radiological report, the age of the prosecutrix was said to be 16 years. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr. P. C. The prosecutrix in her aforesaid statement has resiled from her earlier statement under Section 161 Cr. P. C. The prosecutrix has now stated that she is acquainted with Jeetu and out of her own free will she willingly developed physical relations with the applicant Jeetu. She, however, implicated Sagar for dislodging her modesty. Investigating Officer examined other witnesses under Section 161 Cr. P. C. who have supported the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, he opined to submit a charge sheet. Accordingly, Investigating Officer submitted the charge sheet dated 17.10.2021, whereby applicant Jeetu and co-accused Sagar has been charge sheeted under Sections 363, 366, 376D, 506 IPC and Sections 3/4 POCSO Act.
Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused, but he is innocent. As such, applicant is liable to be enlarged on bail. It is then contended that the medical evidence does not support the F.I.R. As the medical evidence does not support the F.I.R. or the statement of the prosecutrix, no offence under Section 376 IPC can be said to be established against applicant. It is also contended that when the statement of the prosecutrix recorded under Section 161 Cr. P. C., her statement before the Doctor and her statement under Section 164 Cr. P. C. are taken as a whole, the same are inconsistent and contradictory. As the prosecutrix has not been categorical and consistent in her statement, same does not fall in the category of impeccable evidence. As such, the prosecution of applicant on the basis of aforesaid cannot be maintained. In view of above, reliance is placed upon the judgement of the Supreme Court in Phool Singh Vs. State of Madhya Pradesh, 2022 (2) SCC 74. The prosecutrix is a willing and consenting party. She has herself accompanied the prosecutrix. As such, no case of kidnapping i.e. offence under Sections 363 and 366 IPC is made out against applicant. As per the School leaving certificate, the date of birth of prosecutrix is 1.4.2004. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 25.8.2021. As such, the prosecutrix was aged about 17 years and 4 months on the date of occurrence. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 2.11.2021. He has thus undergone 1 year and 1 month of incarceration. In case, 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 opposed the present application for bail. Learned A.G.A. contends that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is guilty of dislodging the modesty of a young girl who was below 18 years of age. As the prosecutrix is a child within the meaning of POCSO Act, no benefit can be derived by applicant from the conduct of the prosecutrix. However, the learned A.G.A. could not dislodge the factual and legal submission urged by learned counsel for applicant 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 of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the prosecutrix is a willing and consenting party, the medical evidence does not support the prosecution case regarding commission of rape upon prosecutrix, the statement of the prosecutrix referred to above not being of impeccable character and therefore no conviction of applicant is possible on the basis of above by virtue of the judgement of the Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74, the period of incarceration undergone by applicant and clean antecedents of applicant, but without expressing any opinion on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Jeetu 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 :- 12.12.2022 HSM