Single judge allowed bail to Kaushal Sonkar in a POCSO/IPC case alleging abduction and rape, noting no specific rape charges against him and preliminary evidence suggesting the prosecutrix is an adult and the case is ill-founded.
Release on bail via personal bond and two sureties subject to conditions including no tampering with evidence and appearing for trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 396 of 2019
Applicant :- Kaushal Sonkar Opposite Party :- State Of U.P. Counsel for Applicant :- Satyendra Narayan Singh,Sanjay Singh Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
This is a bail application on behalf of the applicant Kaushal Sonkar, in Case Crime No. 434 of 2017 under Sections 363, 366, 342, 376, 506, 34 IPC, and Section 5/6/16/17, POCSO Act, Police Station Khuldabad, District Allahabad.
Heard Sri Satyendra Narayan Singh, learned counsel for the applicant, and Sri Sudheer Kumar Pathak, learned AGA along with Sri Abhinav Tripathi, learned counsel appearing on behalf of the State.
The submission of learned counsel for the applicant is that going by the medico legal estimation of the prosecutrix's age, made by the Chief Medical Officer, Allahabad vide his report dated 8.1.2017, based on an Ossification Test, she is above 18 years. Learned counsel for the applicant submits that the prosecutrix is, therefore, clearly a major and the provisions of the POCSO Act would not apply. It is pointed out by learned counsel for the applicant that so far as the applicant is concerned, there is no allegation of rape against him. His name has been dragged in because he is a relative of the main accused Monu Sonkar, with whom, the prosecutrix is in love and into a relationship.
The FIR was lodged on absolutely ill founded allegations under Section 363, 366, IPC alleging that her minor daughter has been abducted by unknown persons with a further allegation, that a week before, co-accused Monu Sonkar had threatened that he would abduct her daughter. It is also said that in the past, a case had been registered against Monu Sonkar at the instance of the prosecutrix. Learned counsel has invited the attention of the Court to the statement of the prosecutrix where she has said that she was abducted by Monu Sonkar and the applicant at gunpoint and forced to ride their motorcycle. She was ridden to a certain Ghauria village and made to stay there overnight. There the women dressed her like a bride and got her photographs alongside Monu Sonkar. It is said that she stayed there on the 17th and 18th October 2017 during which time, he had sexual relations with her. It is said that on 29.10.2017, two lawyers also came over, but in the said statement, there is no allegation of rape against the applicant. Further, in the statement under Section 164 Cr.P.C., it is again reiterated that the applicant and the coaccused Monu Sonkar, made her ride their motorcycle. They trussed up her mouth, took her to the village last mentioned, and after the bridal decoration and photography, as mentioned earlier, Monu Sonkar had carnal relations with her. There is no mention about the applicant ravishing the prosecutrix or any kind of sexual contact between the two.
Learned counsel for the applicant has invited the attention of the Court to an earlier FIR lodged on 27.4.2017 by the prosecutrix's mother against Monu Sonkar alone, giving
rise to Case Crime No.353 of 2017, under Sections 363, 366, 342 IPC and Section 3/4 POCSO Act, Police Station GRP, District Allahabad, accusing him of abducting the applicant at the Allahabad Railway Station. In the said crime, the prosecutrix in her statement recorded before the Magistrate on 4.5.2017 had stated on oath that she knows Monu Sonkar for the past five years; that he stays in the house next door. It is further said that during the past two years, she had become friends with him and had fallen in love with him. It is said that on 25.4.2017, she was going from Allahabad station to Lucknow and got down at Prayag station to drink water, where she met Monu Sonkar. He invited her home, promising that he would put her on board the Ganga Gomati Express, the following morning. She further said that she went along with Monu Sonkar to his house, where she met members of his family. She said that she never married Monu Sonkar, but stayed overnight on 25.4.2017 at his place, where she had physical relations. It is submitted that the record of the earlier case registered against Monu Sonkar, though not legally admissible evidence at the trial of the present case, certainly indicates that there is an ongoing relationship between co-accused Monu Sonkar and the prosecutrix, where the applicant has been falsely implicated on account of his kinship, with co-accused, Monu Sonkar. It is further submitted that a perusal of the medico legal report shows that the external examination and the internal examination of the prosecutrix do not indicate any injury, which is not compatible with a case of rape.
Learned AGA has opposed the prayer for bail.
Considering the overall facts and circumstances of the case, the gravity of the offence, the nature of allegations, the severity of punishment, and, in particular, the fact that there are no allegations of rape against the applicant that are confined to Monu Sonkar, the fact that the prosecutrix is prima facie an adult, the fact that in the past also, there was an FIR registered at the behest of the prosecutrix where the prosecutrix acknowledged her relationship with Monu Sonkar in her statement under Section 164 Cr.P.C., there, the fact there is no medico legal corroboration to a case of rape, but without expressing any opinion on the merits of the case, this Court finds it to be a fit case for bail.
The bail application, accordingly, stands allowed .
Let the applicant Kaushal Sonkar , in Case Crime No. 434 of 2017 under Sections 363, 366, 342, 376, 506, 34 IPC, and Section 5/6/16/17, POCSO Act, Police Station Khuldabad, District Allahabad be released on bail on executing his personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected
of the commission.
v) 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 such person from disclosing facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the complainant would be free to move an application for cancellation of bail before this Court. Order Date :- 7.1.2019
NSC
3 issues framed by the court
Whether the applicant is entitled to bail considering the allegations of abduction and abduction-related offences.
Whether the absence of rape allegations against the applicant and available defence evidence makes this a fit case for bail.
Whether the prima facie adult status of the prosecutrix affects the applicability of the POCSO Act in this bail application.
7 provisions across 2 enactments
Kaushal Sonkar
State Of U.P.
Munir
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
