Allowed

Sushil@ Billar v. State of U.P.

Allahabad HC20 Apr 2022BAIL/44279/2021

Case brief

AI extract

What is this about?

Allowed bail in a POCsO Act/rape case where the applicant was charge-sheeted but medical evidence showed the prosecutrix was 16 years old instead of 13. The court found the bail application was made out due to the uncertainty of medical evidence and clean antecedents.

What did the court decide?

Release of applicant Sushil@ Billar on bail by furnishing a personal bond and two sureties each in like amount.

Sushil@ Billar Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44279 of 2021

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Applicant :- Sushil@ Billar Opposite Party :- State of U.P. Counsel for Applicant :- Gyan Prakash Mishra,Ajay Dubey Counsel for Opposite Party :- G.A.,Rajeev Upadhyay

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Hon'ble Rajeev Misra,J.

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Heard Mr. Gyan Prakash Mishra, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rajeev Upadhyay, the learned counsel for first informant.

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This application for bail has been filed by applicant Sushil@ Billar seeking his enlargement on bail in Case crime No. 42 of 2021 under section 376 IPC and sections 3/4 POCSO Act, Police Station- Maharajpur, District Kanpur Nagar during the pendency of trial.

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Perused the record.

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It transpires from record that in respect of an incident which is alleged to have occurred on 15.2.2021, a belated F.I.R. dated 16.2.2021 was lodged by first informant Rambaran, (father of prosecutrix) and was registered as Case crime No. 42 of 2021 under sections 376 IPC and Section 3/4 POCSO Act, Police Station- Maharajpur, District Kanpur Nagar. In the aforesaid F.I.R. applicant Sushil @ Billar has been nominated as solitary named accused.

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The gravamen of the allegations made in aforesaid F.I.R. is to the effect that on 15.2.2021, applicant is alleged to have dislodged the modesty of daughter of first informant i.e. prosecutrix namely, Hina aged about 13 years, while she was sleeping at her home.

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After registration of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of aforementioned Case Crime Number in terms of Chapter XII Cr.P.C. During course of Investigation, Investigating Officer examined first informant under section 161 Cr.P.C. Same is on record as Annexure-2 to the affidavit. Prosecutrix in her aforesaid statement has supported the prosecution story and also detailed the manner of occurrence. Subsequent to above, prosecutrix was requested for her medical examination. The mother of the prosecutrix gave the consent. accordingly, prosecutrix was medically examined.

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In her statement before Doctor, prosecutrix has reiterated her earlier statement under section 161 Cr.P.C. The doctor who examined the prosecutrix however, did not find any sign of sexual assault on the body of deceased. Moreover nothing unnatural was discovered so as to denote commission of penetrative sexual assault. As per the medical opinon, the age of prosecutrix was determined about 16 years. The recital contained in column 3 at page 29 of the paper book also needs to be noticed regarding the innocence of the prosecutrix. Ultimately, statement of prosecutrix was recorded under section 164 Cr.P.C. wherein also the prosecutrix has reiterated her earlier statement under section 161 Cr.P.C as well her statement before the Doctor.

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However, irrespective of above, Investigating Officer on the basis of statements of witnesses examined under section 161 Cr.P.C. and other material collected by him during course of investigation, he opined to submit a charge sheet. Investigating Officer accordingly submitted the charge sheet dated 2.3.2021, whereby applicant has been charge sheeted under section 376 IPC and sections 3/4 POCSO Act, Police Station- Maharajpur, District Kanpur Nagar.

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Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused but he is innocent. He has been falsely implicated in above mentioned case crime number on account of an ulterior motive.Allegations made in F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in above mentioned case crime number.

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It is next contended that applicant has been charge sheeted for an offence under sections 3/4 POCSO Act, which means that applicant is guilty of committing penetrative sexual assault. He has then invited attention of Court to the medico legal report of the prosecutrix and on basis thereof he contends that medical evidence does nos support the prosecution story as unfolded in F.I.R. Placing reliance upon judgement of Supreme Court in Vineet Kumar Vs. State of U.P., (2017) 13 SCC 369, he contends that in the absence of medical evidence, supporting the prosecution story, no conviction of applicant is possible for an offence under section 376 IPC and 3/4 POCSO Act.

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It is then contended that age of prosecutrix mentioned in the F.I.R. is 13 years, whereas in the medical examination her age has been determined as 16 years. During course of investigation, Investigating Officer collected school leaving certificate, wherein her date of birth has been mentioned as 11.2.2008. However, school leaving certificate has been issued

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on 19.2.2021 i.e. subsequent to F.I.R. Considering the medical evidence on record and particularly the recital contained at page 29 of paper book, the age of prosecutrix is liable to be accepted as 16 years. As such, the statements of prosecutrix when examined as a whole do not fall in the realm of impeccable evidence.

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It is also contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except to present one. Applicant is in jail since 17.2.2021. As such, he has undergone more than one year and two months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. The chargesheet has alredy been submitted against applicant as such, evidence sought to be relied upon by prosecutix against applicant stands crystalized. The custodial arrest of applicant is not absolutely necessary during course of trial.

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Per contra, the learned A.G.A. and Mr. Rajeev Upadhyay, learned counsel for first informant have opposed the prayer for bail. They submit that applicant is a named as well as charge sheeted accused. Prosecutrix is a young girl aged about 13 years. Her modesty has been dislodged by applicant. Reference has also been made to section 4 (ii) POCSO Act and 375 IPC and on basis of above, they contend that no indulgence be granted by this Court in favour of applicant. However, they could not dispute the factual and legal submissions urged by learned counsel for applicant.

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Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed.

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Let the applicant Sushil@ Billar , 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:-

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(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.

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(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.

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(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.

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(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.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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.

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Order Date :- 20.4.2022 Arshad

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Digitally signed by ARSHAD MAHMOOD Date: 2022.04.20 16:49:50 IST Reason: Location: High Court of Judicature at Allahabad

Sushil@ Billar v. State of U.P.

Case brief

What is this about?

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Sushil@ Billar v. State of U.P.

Case brief

What is this about?

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