Allahabad High Court
Mohan vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 16 June, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15137 of 2021 Applicant :- Mohan Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And 3 Ors. Counsel for Applicant :- Adarsh Kumar Maurya,Kanchan,Ram Lal Counsel for Opposite Party :- G.A. Hon'ble Mohd. Aslam,J.
Heard learned counsel for applicant, learned A.G.A. for the State and perused the record.
Perusal of record shows that the opposite party no.2 was duly served and the counsel has requested for time to file counter affidavit, but neither any counter affidavit has been filed nor anyone is present on behalf of opposite party no.2.
The instant application under Section 439 of Cr.P.C. has been filed on behalf of applicant Mohan with a prayer to enlarge him on bail in Case Crime No.316 of 2021, under Sections 376(3), 506 I.P.C. & Section 5J(2)/6 of POCSO Act, Police Station Paliya, District Lakhimpur Kheri, during pendency of trial.
The brief facts necessary for disposal of this case is that informant Seela Devi wife of Satrohan resident of Saktupurva Majra, Gangabehar, Kotwali Nighasan, Kheri lodged a first information report on the basis of written complaint on 12.8.2021 at 13:40 p.m. wherein it is alleged that her daughter victim X aged about 14 years had gone to the house of her cousin brother-in-law (chachera bahnoi). Seeing her alone, the accused-applicant forcibly took her in the field of sugarcane and committed rape upon her and threatened to kill her, if she disclosed about the incident to anyone. A few days later, her daughter had stomachache, she took her to the doctor for her treatment, wherein it was found that her daughter had pregnancy of five months. Thereupon, the victim narrated the entire incident to her mother. The investigation of the case was conducted by Inspector Jagdish Chandra Yadav. The statement of the victim was recorded by him in which she has supported the prosecution case, she was subjected to medical examination where she has narrated the entire incident to the doctor, who has recorded it in history of sexual violence. She was medically examined on 12.8.2021 at 07:30 p.m. to 08:30 p.m., she has stated that apart from it, she has stated that accused has committed sexual violence on multiple time. She has also stated that sexual violence was committed by penis by the accused and ejaculation occurred outside the body. She has also stated to the doctor that the accused had kissed, licked and sucked the body of survivors. She has further stated that the accused has not used condom. No external injury was found on the body of the victim. The hymen was found old and torn. The sample of the blood for HIV, VDRL and hemoglobin test. The sample of the urine was taken for test of pregnancy and ultrasound of the abdomen was advised and for ascertainment of age. She was referred to the medical examination. Scalp hair, heard hair combing, nail scrapings, nail clipping, oral swab, blood for grouping, testing drug/alocohol intoxication (plain vital), blood for alcohol levels (sodium flouride vial), blood for DNA analysis (EDTA vial) were taken. It was opined by the doctor that final report regarding rape shall be given after the availability of report of Forensic Science Laboratory. She was subjected to ultrasound on 13.8.2021 at 11:50 p.m. and pregnancy of 16 weeks was found. The medical age of the victim was ascertained on the basis of ossification test, which was found to be 14-16 years. In urine test pregnancy was also confirmed.
It is submitted by learned counsel for the applicant that the applicant has been falsely implicated in the present case with ulterior motive. It is further submitted that the first information report was lodged after five months and no delay in lodging the first information report has been explained by the prosecution. It is further submitted that the first information report was lodged belated after much consultation and deliberation on the basis of concocted and fabricated story with ulterior motive to falsely implicate the accused-applicant. It is further submitted that no external injury was found on the body even on the private part of the victim. It is further submitted that the medical report does not corroborate the prosecution case. It is further submitted that there is contradictions in the statements of the victim recorded under Sections 161 & 164 Cr.P.C. It is further submitted that the applicant is languishing in jail since 13.8.2021 and if he is released on bail he will not misuse the liberty of bail.
Per contra, learned A.G.A. has opposed the bail application and has submitted that the victim has supported the prosecution case in her statements recorded under Sections 161 & 164 Cr.P.C. It is further submitted that the victim was also minor as per medical evidence. It is further submitted that the victim was threatened by accused that if she disclosed the incident to any member of her family, he will kill her, therefore, when victim felt stomachache and was taken to the doctor then it was found that she had pregnancy of about five months then, thereafter, she has narrated the entire incident to her mother and the first information report was lodged without delay. It is further submitted in above circumstances the prosecution has explained the delay in lodging the first information report. It is further submitted that there is no evidence available on record, which shows that informant/victim has enmity with the accused.
I have gone through the record. Prima facie the delay in lodging the first information report has been explained by the prosecution. The medical examination was conducted after five months, therefore, in above circumstances, no injury was found on the body or even on the private part of victim. Although the hymen was found old and torn. There is presumption under Section 29 of POCSO Act that when a person is prosecuted for committing an offence of sexual assault against a minor, the special court trying the case shall presume the accused to be guilty.
Hon'ble the Supreme Court in the case of X (Minor) Vs. The State of Jharkhand & Anr. 2022 Live Law (SC) 194 has held that even if the victim was consenting party and her age was found below 16 years. Keeping in view the facts and circumstances of the case, the Hon'ble Supreme Court has cancelled the bail application of the accused granted by Hon'ble High Court.
In such circumstances, I do not find any ground to enlarge the applicant on bail. Accordingly, the bail application of the applicant is rejected.
Order Date :- 16.6.2022 Anil K. Sharma