Allowed

Dinesh Kumar v. State of U.P. Thru. Prin. Secy. Home, Lko. and Others

Allahabad HC27 Mar 2023/2702/2023

Case brief

AI extract

What is this about?

In a bail application under the POCSO Act and IPC, the learned Single Judge allowed the release of the applicant after noting discrepancies in the victim's version, delay in lodging the FIR, lack of medical injury evidence despite oral allegations of rape, and prior complaints by the applicant's father against the informant's family.

What did the court decide?

Applicant released on bail on furnishing a personal bond and two sureties each in the like amount.

Dinesh Kumar Vs State of U.P. Thru. Prin… — Child Custody and Guardianship | Allahabad HC (2023)

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Court No. - 16

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2702 of 2023

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Applicant :- Dinesh Kumar

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Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Others Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Manoj Kumar Singh, learned counsel for the applicant, and Sri Srinivas Bajpai, learned Addl. Government Advocate.

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By means of the instant application the applicant Dinesh Kumar S/o Avadhesh seeks bail in Case Crime No. 337 of 2022, under sections 363, 342, 376(D), 506 IPC and section 5(m)/6, Protection of Children from Sexual Offences (POCSO) Act, P.S. Kotwali Murtiha, District Bahraich.

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The aforesaid case has been registered on the basis of a first information report (F.I.R.) lodged against the applicant, his brother Rakesh Kumar and one Ali Ahmad on 26.11.2022 stating that on 11.11.2022 when the informant was returning from a Mazar alongwith her minor daughter at about 2.30 p.m., the accused persons came in a four-wheeler vehicle and they forcibly took her daughter away. It is alleged that the informant raised hue and cry, whereupon one Prakash of her village and some other persons reached on the spot and witnessed the incident.

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The Police claimed to have recovered the alleged victim on 4.12.2022 on the basis of an information received from a Mukhbir from Mihi Purwa Station and the recovery-memo states that after recovery of the victim, Police gave its information to the informant through phone and thereafter the

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informant reached on the spot and identified her daughter.

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In her statement recorded under section 161, Cr.P.C. the alleged victim has stated that the accused persons had kidnapped her; they detained her inside a room and raped her for 21 days. She further stated that upon getting an opportunity she escaped and came to Mihi Purwa by bus and that she made a phone call to her mother and told all the things to her and meanwhile the Police reached there.

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In the medico-legal examination report of the victim, no injury or mark of use of force has been reported on any part of her body and no sign of sexual assault was found on her clinical examination.

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In her statement recorded under section 164, Cr.P.C. she stated that the accused persons had kidnapped and raped her, because there is an old animosity between them. She further stated that the accused persons detained her with them for about 1 month, and that on one day she escaped and the Police caught her while she was sitting near the railway-lines.

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In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

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It has further been stated in the affidavit that on 12th of October 2022 the applicant's father Awadhesh Kumar Maurya had filed an application under section 156(3), CrPC against the informant, her husband Alam, informant's two brothers and sisters and Jai Prakash stating that the aforesaid persons were trying to encroach upon his field and upon opposition all of them had beaten up and assaulted him with sticks.

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The State has filed a counter affidavit annexing therewith the statements of the victim recorded under section 161 and 164, CrPC and a copy of the medico-legal examination report.

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The learned A.G.A. has stated that age of the victim has been found to be 12- 13 years.

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Having considered the aforesaid facts and circumstances of the case and keeping in view the facts that the informant's daughter is said to have been abducted from a public place in broad daylight on 11th of November 2022; F.I.R. has been lodged on 20th of November 2022 and there is absolutely no explanation for the delay; that there are discrepancies regarding the manner and place from where the alleged victim has been recovered; that the allegation of rape have not been supported by the medico-legal examination report of the victim and that there is an old dispute between the parties and the applicant's father has lodged an application under section 156(3), CrPC against the informant and her other family members on 12th of October 2022, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

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The State has filed a counter affidavit annexing therewith copies of the aforesaid statements and it has further stated that the victim has declined to undergo the medico-legal examination.

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Having considered the aforesaid facts and circumstances of the case and keeping in view the aforesaid statements of the alleged victim as also the fact that she has declined to undergo the medico-legal examination, I am of the view that the applicant is entitled to be released on bail.

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Accordingly, this bail application stands allowed .

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Let the applicant Dinesh Kumar S/o Avadhesh be released on bail in the aforesaid Case Crime No. 337 of 2022, under sections 363, 342, 376(D), 506 IPC and section 5(m)/6, Protection of Children from Sexual Offences (POCSO) Act, P.S. Kotwali Murtiha, District Bahraich, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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( Subhash Vidyarthi, J. )

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Order Date :- 27.3.2023 A.Nigam

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Digitally signed by :- ANUJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Dinesh Kumar v. State of U.P. Thru. Prin. Secy. Home, Lko. and Others

Case brief

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Dinesh Kumar v. State of U.P. Thru. Prin. Secy. Home, Lko. and Others

Case brief

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What did the court decide?

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