Allowed bail to applicant Bal Mukund accused of rape and POCSO offences. Court held prosecutrix statements unreliable due to medical evidence. No incriminating circumstance necessitated continued custody given clean antecedents and existing incarceration.
Relevant provisions: Indian Penal Code, POCSO Act, Code of Criminal Procedure.
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Neutral Citation No. - 2023:AHC:134550
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22877 of 2023
Applicant :- Bal Mukund Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Virendra Singh Parmar,Arvind Singh Parmar Counsel for Opposite Party :- G.A.,Dhirendra Singh Rajput
Hon'ble Rajeev Misra,J.
Heard Mr. V.S. Parmar, the learned counsel for applicant, the learned A.G.A. for State and Mr. Dhirendra Singh Rajput, the learned counsel for first informant/opposite party 2.
This application for bail has been filed by applicant Bal Mukund seeking his enlargement on bail in Case Crime No. 16 of 2023, under Sections 376(3), 452 IPC and Sections 3/4 POCSO Act, 2012, P.S. Ata, District Jalaun, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident, which is alleged to have occurred on 05.02.2023, a delayed F.I.R. dated 06.02.2023 was lodged by first informant Karan Pal Singh (father of the prosecutrix) and was registered as Case Crime No. 16 of 2023, under Sections 376(3), 452 IPC and Sections 3/4 POCSO Act, 2012, P.S. Ata, District Jalaun. In the aforesaid F.I.R., the applicant Bal Mukund has been nominated as solitary named accused.
The gravamen of the allegations made in the F.I.R. is that on 5.2.2023, the daughter of the first informant i.e. prosecutrix namely X was alone at home. Applicant is alleged to have entered the house of first informant and thereafter, deliberately and forcibly dislodged the modesty of prosecutrix by committing rape upon her.
After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The statement of the prosecutrix was recorded on 6.2.2023 under Section 161 Cr. P. C. and same is on record at page 29 of the paper book. The
prosecutrix in her aforesaid statement has supported the F.I.R. Thereafter the prosecutrix was medically examined. The Doctor, who medically examined the prosecutrix, did not find any injury on her body so as to denote committing of sexual assault, has opined under the heading "Relevant Medical/Surgical history" at page 40 of the paper book as follows:-
Onset of menarche (in case of girls) Yes/ No Age of
onset 12 years Menstrual history-Cycle length and duration 5 days Last menstrual period 4 days back
Menstruation at the time of incident - Yes/No/, (MARKED-YES) Menstruation at the time of examination-Yes/No/ (MARKED-NO)
Was the survivor pregnant at the time of incident-Yes/No, If Yes duration of pregnancy.................... weeks
Conception use Yes/No no............If yes-method
Used ..............................vaccination status-Tetanus (vaccinated)/Not vaccinated) Hepatitis B (vaccinated/not)
Subsequent to above, the statement of the prosecutrix was recorded under Section 164 Cr. P. C. on 8.2.2023, copy of which is on record at page 53 of the paper book. Prosecutrix in her aforesaid statement has rejoined her earlier statement under Section 161 Cr. P. C. Investigating Officer also examined first informant and other witnesses under Section 161 Cr. P. C. who have supported the F.I.R. On the basis of above and other material collected by him, during the course of investigation he came to the conclusion that offence complained of is fully established against applicant. He, accordingly, submitted charge sheet dated 7.3.2023.
Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused, but he is innocent. Referring to the statements of the prosecutrix recorded under Sections 161/164 Cr. P. C., wherein the prosecutrix has supported the F.I.R., he submits that in view of the recital contained at page 40 of the paper book, which has been referred to above, the statements of the prosecutrix are not worthy of reliance. In view of biological condition of the prosecutrix, offence complained of could not have been committed. He, therefore, submits that prosecution case is, therefore, not worthy of reliance. Even otherwise, the Doctor, who conducted medical examination of the prosecutrix, did not find any sign on the body of prosecutrix so as to denote commission of sexual assault. In short, the submission is that the medical evidence does not support the ocular version.
Learned counsel for applicant has then invited the attention of the Court to the judgement of Supreme Court in Phool Singh Vs. State of M.P., (2022) 2 SCC, 74. On the basis of above, he contends that an accused can be convicted for an offence of rape/sexual assault, even in the absence of medical evidence and on the solitary evidence of the prosecutrix. However, in such a circumstance, the statement of the prosecutrix should be of impeccable character. But in the present case, when veracity of prosecutrix is examined in the light of medical evidence particularly at page 40 of the paper book, the statement of the prosecutrix is not only false, but also not worthy of reliance. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant was involved in a case under Section 307 IPC has been acquitted. Applicant is in jail since 9.2.2023. As such, he has undergone almost 5 months of incarceration. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized upto this stage. No such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. To buttress his submission, he has relied upon judgement of the Supreme Court in Subhash Chandra Gangwar Vs. State of Maharashtra, 2023 Livelaw (S.C.) 373 (para 5) . On the basis of above, the learned counsel for applicant contends that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. However, they could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for state, the learned counsel for first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that in view of the medical opinion, as is explicit from page 40 of the paper book, the statements of the prosecutrix recorded under Sections 161/164 Cr. P. C. are unworthy of reliance, there being no explanation of the prosecutrix with regard to manner of occurrence, the police report having been submitted, therefore, the entire evidence sought to be relied by the
prosecution against applicant now stands crystallized, the learned A.G.A. could not point out any such incriminating circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgement of the Supreme Court in Subhash Chandra Gangwar Vs. State of Maharashtra, 2023 Livelaw (supra) , the statements of the prosecutrix recorded under Sections 161/164 Cr. P. C. prima facie are unworthy of reliance, clean antecedents of applicant, the period of incarceration undergone, but without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Bal Mukund involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 :-
(i) The applicant shall file an undertaking to the effect that he 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.
(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 him in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try
to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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
Order Date :- 7.7.2023 HSM
Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad
3 issues framed by the court
Whether bail can be granted to an accused charged with rape and POCSO offences where medical evidence contradicts prosecutrix statements but antecedents are clean.
Whether the medical report rendering prosecutrix statements unreliable vitiates the necessity for custodial arrest during trial.
Whether a clean antecedent and period of incarceration pending trial necessitate bail despite serious charges.
Colour shows how this judgement treated each authority
Phool Singh Vs. State of M.P.Referred¶21
Phool Singh Vs. State of M.P., (2022) 2 SCC, 74. · Who else cites this
Subhash Chandra Gangwar Vs. State of MaharashtraReferred¶21
Subhash Chandra Gangwar Vs. State of Maharashtra, 2023 Livelaw (S.C.) 373
7 provisions across 3 enactments
Bal Mukund
State Of U.P.
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
