A single-judge bench allowed a bail application filed by Gaurav in a case involving offences under the POCSO Act and IPC for attempting to disrobe a seven-year-old girl.
The applicant Gaurav was released on bail on a personal bond and two sureties subject to specific conditions.
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. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32697 of 2022
Applicant :- Gaurav Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Garun Pal Singh Counsel for Opposite Party :- G.A.,Rajeev Kumar Srivastava
Hon'ble Subhash Vidyarthi,J.
1.Heard Sri Kamal Krishna, Senior Advocate assisted by Sri Garun Pal Singh, the learned counsel for the applicant, Sri Ghanshyam Mishra, the learned State Counsel and perused the record.
2.By means of an order dated 01.08.2022, the learned counsel for the informant had been granted two weeks' time to seek instructions and file counter affidavit, however, no counter affidavit has been filed till date.
3.The instant application has been filed seeking release of the applicant on bail in Case Crime No. 199 of 2022, under Sections 323, 354Kha IPC, and Section 9/10 Protection of Children from Sexual Offences Act, Police Station Raya, District Mathura.
4.The aforesaid case has been registered on the basis of a first information report lodged on 25.06.2022 alleging that at about 09:30 p.m. on 24.06.2022, the applicant took the informant's seven years old daughter behind a temple, disrobed her and tried to commit misdeed with her and upon the victim's raising a hue and cry, several ladies reached there and the applicant ran away.
5.It has been averred in the affidavit filed in support of the bail application that the applicant is an innocent person, he has been falsely implicated in the case and he is in jail since 26.02.2022. It has also been stated in the affidavit that there is no possibility of the applicant tampering with any evidence and in such circumstances, the applicant is entitled for bail. It is also stated in the affidavit that the applicant will not misuse the liberty of bail and he will fully cooperate in the investigation.
6.In the medico-legal examination report of the victim, a biting mark on her right cheek was found.
7.In her statement recorded under Section 161 Cr.P.C., the
alleged victim stated that the applicant had called her and had bitten on her cheek, he gave her Rs. 10/- and asked her not to tell about the incident to her mother. The victim thereafter came home with her mother and she told about the incident to the latter. She categorically stated that besides biting on her cheek, the applicant did not commit any other act. In her statement recorded under Section Section 164 Cr.P.C., the victim alleged that the applicant had tried to disrobe her.
8.In para-16 of the affidavit, it has been stated that the applicant has been falsely implicated in the present case because the applicant and his father had ploughed the fields of the first informant with their tractor and when they pressed for payment of the aforesaid work, the applicant has been falsely implicated.
9.In para-17 of the affidavit, the applicant's involvement in Case Crime No. 84 of 2020, under Sections 452, 307, 323, 504, 506 IPC has been disclosed and it has been stated that after investigation, the police has roped the applicant under Section 307 IPC and the applicant has not been arrested in that case.
10.Per contra, the learned Additional Government Advocate has opposed the prayer for grant of bail, but he could not dispute the aforesaid aspects of the matter.
11.I have considered the aforesaid facts and circumstances of the case. The FIR of the incident has been lodged after more than 12 hours and the FIR version is different from the statement of the alleged victim recorded under Section 161 Cr.P.C. The statement of the alleged victim recorded under Section 164 Cr.P.C. also contains some discrepancies with the FIR version as also with her statement recorded under Section 161 Cr.P.C.
12.Having considered the aforesaid facts and submissions and keeping in view the fact that in the FIR, it has been alleged that the applicant had disrobed the victim and upon her raising a hue and cry, several ladies and the family members of the informant had reached on the spot whereas the statement of the alleged victim recorded under Sections 161 and 164 Cr.P.C. does not contain any allegation to support this allegation; that in the statement recorded under Section 161 Cr.P.C., the alleged victim stated that the applicant had bitten on her cheek and he did not commit any other misdeed and also keeping in view the fact that the statement of the alleged victim recorded under Section 161 Cr.P.C. is at variance with the allegations levelled in the FIR, as also her statement recorded under Section 161 Cr.P.C., I am of the view that the applicant is entitled to be released on bail in the aforesaid case.
13.In light of the preceding discussion and without making any observation on the merit of the case, the instant bail application is allowed .
14.Let the applicant Gaurav be released on bail in Case Crime No. 199 of 2022, under Sections 323, 354Kha IPC, and Section 9/10 Protection of Children from Sexual Offences Act, Police Station Raya, District Mathura, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not influence any witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.
15.In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.
Order Date :- 9.11.2022 Ashish Pd.
Digitally signed by ASHISH PRASAD Date: 2022.11.11 18:07:54 IST Reason: Location: High Court of Judicature at Allahabad
1 issue framed by the court
Whether the applicant is entitled to bail in a case involving sexual offences against a minor given discrepancies in the victim's statements and FIR discrepancies.
4 provisions across 3 enactments
Gaurav
State Of U.P.
Subhash Vidyarthi
Ashish Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
