Dismissed

Shahbaz v. State of U.P. and 3 Others

Allahabad HC19 Sept 2023BAIL/23293/2023

Case brief

AI extract

What is this about?

In a bail application under IPC and POCSO Act, the court examined conflicting victim statements and age evidence. Relying on the victim's final police statement and medical opinion uncertainties, the court found insufficient grounds to grant bail.

What did the court decide?

Application for bail is rejected.

What the court decided

Shahbaz Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:180962

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23293 of 2023

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Applicant :- Shahbaz Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Karuna Nand Tiwari Counsel for Opposite Party :- G.A.,Anand Tripathi,Manvendra Singh

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Hon'ble Rajeev Misra,J.

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Heard Mr. Karuna Nand Tiwari, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anand Tripathi, the learned counsel representing first informant/opposite party-2.

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2. Perused the record.

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Instant application for bail has been filed by applicant-Shahbaz seeking his enlargement on bail in Case Crime No. 66 of 2023 under Sections 363, 376(3) I.P.C. and Sections 3/4 POCSO Act, Police Station-Brijmanganj, District-Maharajganj, during the pendency of trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 13.03.2023, a delayed F.I.R. dated 14.03.2023 was lodged by first informant Ramoo (father of the prosecutrix) and was registered as Case Crime No. 66 of 2023 under Section 363, Police Station-Brijmanganj, District-Maharajganj. In the aforesaid F.I.R. three persons namely Shahbaz (applicant herein), Sabra Alam and Arbaj have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R is to the effect that the named accused Shahbaz (applicant herein) in

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connivance with other co-accujsed enticed away the minor daughter of first informant namely X.

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After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 19.03.2023. Thereafter the statement of the prosecutrix was recorded by the Investigating Officer under Section 161 Cr.P.C, which is on record as annexure 4 to the affidavit filed in support of bail application. In the aforesaid statement, the prosecutrix has not supported the F.I.R.. To the contrary she has stated that she herself went to the applicant and thereafter accompanied the applicant to Bombay where they resided as husband and wife. Thereafter prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the doctor has departed from her previous statement under Section 161 Cr.P.C. and has now stated that she was kidnapped by the named accused and thereafter forcibly taken to Bombay where her modesty was deliberately dislodged by applicant Shahbaz. Thereafter, statement of the prosecutrix was recorded under Section 164 Cr.P.C.. Copy of same is on record at page 41 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement given before the Doctor, who medically examined her.

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During course of investigation, Investigating Officer obtained the certificate issued by the Principal where the prosecutrix studied Class III and IV. As per said certificate, the date of birth of the prosecutrix as recorded in the school record is 11.07.2010. Subsequently, the statement of the Principal was also recorded wherein the Principal has proved the certificate issued by him.

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Investigating Officer further examined the first informant and other witnesses who have supported the F.I.R. As per medical opinion, age of the prosecutrix is determined to be approximately 18 years. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of named accused is fully established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 30.04.2023 whereby applicant-Shahbaz has been charge-sheted under Sections 363, 376 (3) I.PC. and Sections 3/4 POCSO Act whereas the two other named accused have been charge sheeted under Section 363 I.P.C.

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Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. Inviting attention of the court to the statement of the prosecutrix as recorded under Section 161 Cr.P.C. he submits that prosecutrix is a willing and consenting party. Since prosecutrix herself came to the applicant and accompanied him to Bombay, therefore no offence under Section 363 I.P.C. can be said to have been committed by applicant inasmuch as neither the prosecutrix was enticed away, abducted nor kidnapped by the applicant. It is then contended that physical relationship between the parties was established upon the consent of the prosecutrix. As such, modesty of the prosecutrix was not dislodged by applicant forcibly or deliberately. Consequently, no offence under Section 376 (3) I.P.C. is made out against applicant.

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As per the medical opinion, the prosecutrix was said to aged about 18 years. Consequently, the prosecutrix is majour. In view of above, no offence under Section 3/4 POCSO Act is made out against applicant.

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Even otherwise, applicant is a man of clean antecedents inasmuch as he

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has no criminal history to his credit except the present one. Applicant is in custody since 19.03.2023. As such he has undergone approximately six months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore submits 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.

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Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named as well as charge-sheeted accused therefore he does deserve any indulgence by this Court. Attention of the Court was then invited to the statement of the prosecutrix given before the Doctor and under Section 164 Cr.P.C wherein prosecutrix has departed from her earlier statement under Section 161 Cr.P.C. The statement of the prosecutrix under Section 164 Cr.P.C. has to be given prudence over her statement under Section 161 Cr.P.C., wherein the prosecutrix has clearly implicated the applicant and others in the crime in question. It is then contended that since the prosecutrix is below 18 years of age as per date of birth recorded in school record therefore charge sheet submitted by Investigating Officer against applicant and others cannot be faulted. According to the learned A.G.A., as per medical opinion age of the prosecutrix though determined to be 18 years but the same cannot be said to be conclusive as there can be variation of two years plus and minus. The prosecutrix was below 18 years of age. No such material has been brought on record by applicant to demonstrate that the prosecutrix was major on the date of occurrence. In view of above, consent if any given by the prosecutrix is wholly immaterial. Applicant is guilty of dislodging the modesty of the prosecutrix

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deliberately and forcibly, who is a girl of tender. On the above premise. they submit that present application is liable to be rejected by this Court.

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When confronted with above, the learned counsel for applicant could not overcome the same.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel for first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that the prosecutrix in her statement before Doctor and under Section 164 Cr.P.C. has categorically supported the F.I.R., there is nothing on record to show that the prosecutrix and the applicant have solemnized marriage, medical evidence vehemently relied upon by the learned counsel for applicant regarding age of the prosecutrix cannot be categorical as there can be variation of two year plus and minus, applicant has not brought on record any such material on the basis of which it can be conclusively concluded that prosecutrix was major on the date of occurrence, therefore irrespective of the submissions urged by learned counsel for applicant in support of present application for bail, this court does not find any good ground to enlarge the applicant on bail.

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As a result, present application for bail fails and is liable to be rejected.

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It is accordingly rejected .

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Order Date :- 19.9.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Shahbaz v. State of U.P. and 3 Others

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Shahbaz v. State of U.P. and 3 Others

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