Anuj Yadav Vs State of U.P. and 3 Ors.

Court No. - 13

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10940 of 2021 Applicant :- Anuj Yadav Opposite Party :- State Of U.P. And 3 Ors. Counsel for Applicant :- Smt. Shikha Srivastava,Abhinav Pankaj,Mandhata Samrat Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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This case is taken up in the revised call.

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Learned counsel for the applicant has filed rejoinder affidavit today in court. The same is taken on record.

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None has appeared on behalf of the opposite party no. 2.

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As per Office Report dated 11.03.2022 notice issued to opposite party no.2 has been served personally, but neither anyone has put in appearance on behalf of opposite party No.2 nor counter affidavit has been filed, therefore, this Court has no option except to hear and decide the bail application.

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Heard Smt. Shikha Srivastava, learned counsel for the applicant and Sri Sudhir Upadhyay, learned A.G.A. for the State and perused the record.

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This application has been filed seeking the release of the applicant on bail in Case Crime No. 0035 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Masauli, District Barabanki.

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Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case due to village rivalry. No such incident took place, as alleged by the prosecution. The entire prosecution story has been set up only with the intention to defame the image of the applicant and his entire family in the society.

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Learned counsel for the applicant further submits that initially the F.I.R. was lodged under Section 363, 366, 504 and 506 I.P.C., thereafter when the victim was recovered and her statement was recorded under Section 161 and 164 Cr.P.C., Section 376 I.P.C. and Section 3/4 POCSO Act was inserted by the Investigating Officer.

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Learned counsel for the applicant further submits that the statement of the victim was recorded under Section 161 Cr.P.C. in which she has clearly stated this fact that she knew the applicant for the last three years and she loves the applicant and

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she went with the applicant on her own sweet will and no pressure was created by the applicant. She solemnized the marriage with the applicant in a temple and they were living as husband and wife and she also made physical relation with the applicant on her own consent, whereas in the statement recorded under Section 164 Cr.P.C. she took somersault and totally changed her version and stated that the applicant has committed rape with her. She has admitted her age as 16 years.

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Learned counsel for the applicant further submits that as the victim is about 16 years of age, taking the benefit of two years she is major and knew her consequences very well, therefore, Section 3/4 POCSO Act is not applicable in the case of the applicant.

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Learned counsel for the applicant further submits that the allegation of rape as levelled in her statement recorded under Section 164 Cr.P.C. got demolished after perusal of the medical report as the doctor in his opinion opined that neither any internal or external injury found on the private part of the victim nor any dead or alive spermatozoa seen. The urine pregnancy test is also negative and the doctor has also opined that no definite opinion regarding sexual assault can be given, therefore, the entire prosecution story is false and fabricated and no case under Section 376 I.P.C. is made out against the applicant.

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Learned counsel for the applicant further submits that the victim and applicant appears to be consenting party and they knew each other very well much prior to the incident, and the applicant has falsely been implicated with malicious intention and on the pressure of family members of the victim, therefore, the applicant be enlarged on bail by this Court sympathetically.

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Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history, which has been explained in para 25 of the affidavit filed in support of the bail application and the applicant is in jail since 26.02.2021 and has by now done a substantial period of incarceration, therefore, the bail application of the applicant may also be considered by this Court sympathetically and he

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should also be released on bail.

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Learned A.G.A. opposed the prayer for bail and submits that the applicant is involved in the heinous crime and his bail application may be rejected but did not dispute this fact that the parties are consenting parties.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there is vast contradiction in the statement of the victim recorded under Section 161 and 164 Cr.P.C. and as the medical report does not support the allegation of rape, as the doctor has given his opinion that neither any internal or external injury found on the private part of the victim nor any dead or alive spermatozoa seen. The urine pregnancy test is also negative and the doctor has also opined that no definite opinion regarding sexual assault can be given and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22 , this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant- Anuj Yadav involved in Case Crime No. 0035 of 2021, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Masauli, District Barabanki be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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(5) In case, the applicant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

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(6) The applicant shall remain present, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.

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(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

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(8) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.

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Order Date : - 25.7.2022 Arvind

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Digitally signed by ARVIND KUMAR SRIVASTAVA Date: 2022.07.29 17:57:15 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Anuj Yadav v. State of U.P. and 3 Ors.

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Anuj Yadav v. State of U.P. and 3 Ors.

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