Allahabad High Court
Shivakar vs State Of U.P. And 3 Others on 11 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:163016 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31419 of 2023 Applicant :- Shivakar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Jitendra Kumar Shishodia,Gyan Chandra Counsel for Opposite Party :- G.A.,Pankaj Sharma,Prashant Sharma Hon'ble Rajeev Misra,J.
1. Heard Mr. Jitendra Kumar Shishodia, the learned counsel for applicant, the learned A.G.A. for State and Mr. Pankaj Sharma, the learned counsel representing first informant-opposite party 4.
2. Perused the record.
3. This application for bail has been filed by applicant-Shivakar, seeking his enlargement on bail in Case Crime No. 117 of 2023, under Sections 363, 376, 506 IPC and Sections 5/6 POCSO Act, Police Station-Naugawan Sadat, District-Amroha during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 13.03.2023, a delayed FIR dated 24.03.2023 was lodged by first informant-Neeraj Kumar (father of the prosecutrix) and was registered as Case Crime No. 0117 of 2023, under Sections 328, 341, 363, 376D, 506 IPC and Sections 5/6 POCSO Act, Police Station-Naugawan Sadat, District-Amroha. In the aforesaid FIR, 3 persons namely - (1) Shivakar, (2) Vansh and (3) Shaurabh have been nominated as named accused.
5. The gravamen of the allegations made in the FIR to the effect that named accused deliberately and forcibly dislodged the modesty of the prosecutrix by committing rape upon her.
6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has supported the FIR. However, she does not state that her modesty was dislodged by the named accused by forcibly committing rape upon her. Thereafter, the prosecutrix was requested for her medical examination. The Doctor, who examined the prosecutrix did not find any injury on her body so as to denote commission of sexual assault. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the supplementary medico legal report of the prosecutrix has not been brought on record. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Same is on record at page 43 of the paper book. The prosecutrix in her aforesaid statement has departed from her earlier statement by alleging that her modesty was dislodged forcibly and deliberately by the named accused.
7. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. who have substantially supported the FIR. Investigating Officer furhter recovered the certificate issued by the Principal of Genius Evens Academy Milak Kailbakri, Amroha. As per the said certificate, the prosecutrix passed her Class-VIII examination from the said institution and her date of birth as recorded in the school records is 22.09.2006. The occurrence giving rise to the present criminal proceedings is alleged to have occurred on 13.03.2023. As such, the prosecutrix was aged about 16 years, 5 months and 21 days. On the above premise, Investigating Officer came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated 06.05.2023 whereby applicant has been charge sheeted under Sections 363, 376, 506 IPC and Sections 5/6 POCSO Act whereas in respect of other 2 named accused is said to be pending.
8. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused, therefore, he is liable to be enlarged on bail. Applicant is innocent. He has falsely implicated in in aforementioned case crime number. According to the learned counsel for applicant, the prosecutrix has been held to be a juvenile on the basis of school certificate issued by Principal from where the prosecutrix passed her Class-VIII examination. As per the certificate issued by the Principal, the date of birth of the prosecutrix recorded in the school record is 22.09.2006. As such, the prosecutrix was aged about 16 years, 5 months adn 21 days. Referring to the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the learned counsel for applicant contends that certificate of the principal is not such a document on the basis of which, the date of birth of the child can be concluded. Moreover, the said certificate does not pertain to an institution where the prosecutrix had first studied. According to the learned A.G.A., the prosecutrix has studied from Class-5th to Class-8th in the said institution. As such, no age of the prosecutrix could have been determined as per the certificate issued by the Principal of the institution. Attention of the Court was then invited to the judgment of Supreme Court in P. Yuvaprakash Vs. State, 2023 SCC OnLine SC 846 and on basis thereof, he contends that age of the prosecutrix cannot be determine as per the date of birth recorded in the scholar register either.
9. According to the learned counsel for applicant, the prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her earlier statement recorded under Section 161 Cr.P.C. He, therefore, contends that embellishment, exaggeration/contradiction has emerged in the subsequent statement of the prosecutrix. However, the same has not been explained by the prosecutrix. Reference was then made to the judgment of the Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC 74 and on basis thereof, the learned counsel for applicant contends that an accused can be convicted for an offence of rape or sexual assault on the basis of solitary statement of the prosecutrix and in the absence of the medical evidence. However, in such a circumstance, the statement of the prosecutrix should be clear, categorical and consistent. When the aforesaid test is applied to the statement of the prosecutrix referred to above, it can be definitely concluded that the statements of the prosecutrix when taken as a whole fall in the category of impeccable evidence. As such, no prosecution of applicant can be maintained on the basis of statement of the prosecutrix referred to above.
10. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 28.03.2023. As such, he has undergone more than 4 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged on the record necessitating the custodial arrest of the applicant during the pendency of trial. 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.
11. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since 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 less than 17 years. Applicant is guilty of dislodging the modesty of the prosecutrix. Crime committed by the applicant is not private in nature but a crime against society. It is thus contended that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that the prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her earlier statement recorded under Section 161 Cr.P.C., as such, embellishment, exaggeration/contradiction has emerged in the subsequent statement of the prosecutrix, however, the same has not been explained, the judgment of the Supreme Court in Phool Singh (Supra), the clean antecedents of the applicant, the period of incarceration undergone and coupled with the fact that in spite of the fact that the charge sheeted has been submitted only against applicant whereas in respect of the other 2 accused is said to be pending, the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the provisions contained in Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, the judgment of the Supreme Court in P. Yuvaprakash (Supra), but without making any comments on the merits of the case, applicant has made out a case for bail.
13. Accordingly, the bail application is allowed.
14. Let the applicant-Shivakar, be released on bail in the aforesaid case crime number on his furnishing a personal bond and 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/HER 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.
15. 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 :- 11.8.2023 Vinay