Allowed

Ashish Giri v. State of U.P. and 3 Others

Allahabad HC21 Jul 2023BAIL/25987/2023

Case brief

AI extract

What is this about?

Court allowed bail application in a case involving enticement of a minor daughter prosecuted under IPC and POCSO. Judge noted prosecutrix statements indicated she went willingly and no ossification test was done.

What did the court decide?

Released on furnishing personal bond and two sureties each in the like amount with four conditions.

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

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Neutral Citation No. - 2023:AHC:146164

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25987 of 2023

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Applicant :- Ashish Giri Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Krishna Mani Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Sri Tanay Kumar, learned AGA, for the State, apprised the Court that on 9.6.2023 notice has been served to the informant of the case.

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Despite service of notice, none appeared on behalf of the informant.

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Heard Sri K.M.Gupta, learned counsel for the applicant and Sri Tanay Kumar, learned AGA, for the State.

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The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail in Case Crime No.05 of 2023, under Sections 363, 366 and 376 IPC and Section 3/4 POCSO Act, Police Station Anpara, District Sonbdhadra, during pendency of the trial.

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FIR of the present case was lodged against the applicant under Sections 363 and 366 IPC and according to the FIR, applicant enticed away the minor daughter of the informant aged about 14 years.

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Learned counsel for the applicant submits that entire allegation against the applicant is totally false and baseless and actually victim herself had gone along with applicant and this fact is evident from her statement recorded under Section 161 Cr.P.C. He further submits that victim in her statement recorded under Section 161 Cr.P.C.stated that applicant did not commit

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any wrong.

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He further submits that even from the statement of the prosecutrix recorded under Section 164 Cr.P.C. it appears that she was consenting party. He further submits that although as per School record the age of victim at the time of incident was around 14 and 1/2 years but from physical appearance wise she appears to be major aged about 18 years and applicant is hardly 19 years old, therefore, from the statement of victim recorded under Section 164 Cr.P.C. it appears that it is a case of teenage love.

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He next submits that except Class-V marks heet, there is no evidence in respect of age of prosecutrix as during investigation her ossification test was not conducted.

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He further submits that applicant is not having any previous criminal history and in the present matter he is in jail since 5.1.2023, i.e., for the last more than six months.

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Per contra, learned AGA opposed the prayer for bail and submits that according to School record of victim, she was around 14 and 1/2 years old at the time of incident and therefore, her consent is immaterial but he could not dispute the fact that in both the statements recorded under Sections 161 and 164 Cr.P.C.she stated that she had gone along with applicant according to her own wish. He further could not dispute that prosecutrix in her statement recorded under Section 161 Cr.P.C. specifically stated that applicant did not commit any wrong with her.

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I have heard learned counsel for the parties and perused the record of the case.

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Although as per school record, victim appears to be 14 and

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1/2 years old at the time of incident but in her both the statements recorded under Sections 161 and 164 Cr.P.C. she stated that she had gone along with applicant according to her own wish. Further, during investigation her ossification test was not conducted and except her Class-V mark sheet there is no other evidence with regard to her age on record.

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Further, although victim in her statement recorded under Section 164 Cr.P.C. stated that she had performed marriage with applicant and she started living with applicant as his wife and physical relationship was also developed between them but in her statement under Section 161 Cr.P.C. prosecutrix categorically stated that applicant did not commit any wrong with her. Further, it also reflects from the record that applicant is around 19 years old.

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Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

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Let the applicant- Ashish Giri be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(ii) 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 or any police officer or tamper with the

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evidence.

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(iii) The applicant shall not indulge in any criminal and antisocial activity.

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In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Order Date :- 21.7.2023

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SKM

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

Ashish Giri v. State of U.P. and 3 Others

Case brief

What is this about?

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Ashish Giri v. State of U.P. and 3 Others

Case brief

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