Allowed

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

Allahabad HC22 Aug 2023BAIL/28203/2023

Case brief

AI extract

What is this about?

In a bail application, the court examined the age of the prosecutrix despite conflicting school records and lack of ossification test. Finding the age unproven and noting no direct allegations against the applicant by the prosecutrix, the application was allowed.

What did the court decide?

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

Mustkim Vs State of U.P. and 3 Others — Caste Atrocities | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:168178

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28203 of 2023

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Applicant :- Mustkim Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mukesh Chandra Gupta,Shubham Prakash Gupta

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Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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As matter pertains to the provisions of POCSO Act and SC/ST Act, therefore, notice was issued to the informant of the case on 19.7.2023.

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As per office report dated 18.8.2023 notice has been served to the informant personally. Even Sri Tanay Kumar, learned AGA, for the State, apprised the Court that 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 Shubham Prakash 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.294 of 2022, under Sections 363 and 376 (2)(N)(3) IPC, Section 3/4 (2) POCSO Act and Section 3(2)(5) SC/ST Act, Police Station Mawana, District Meerut during pendency of the trial.

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FIR of the present case was lodged against the applicant under Section 363 IPC against one Manoj and two unknown boys and according to the FIR, co-accused Manoj with the help of other accused persons enticed away the minor daughter of the informant aged about 14 years.

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Learned counsel for the applicant submits that applicant was not named in the FIR and when prosecutrix, i.e., daughter of the informant was recovered then she stated that according to her own, she had left her paternal home and thereafter started living in the home of applicant along with his family members and also performed marriage with him.

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He further submits that similar statement was given by the prosecutrix in her statement recorded under Section 164 Cr.P.C.

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He further submits that although as per certificate issued by the Principal, Jawahar Inter College Chhota Mawana, Meerut date of birth of the prosecutrix is 20.10.2008 and according to the school certificate at the time of incident she was even below 14 years of age but the prosecutrix in her both the statements recorded under Sections 161 and 164 Cr.P.C. categorically stated that her parents has mentioned wrong date of birth in the school record and actually she is about 18 years of age.

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He further submits that even 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 21.1.2023.

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Per contra, learned AGA opposed the prayer for bail and submits that as per the certificate issued by the Principal, Jawahar Inter College, Chhota Mawaha, Meerut at the time of incident, prosecutrix was even below 14 years of age and, therefore, her consent is immaterial but he could not dispute the fact that during investigation her ossification test was not conducted.

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

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Although from the certificate issued by the Principal, Jawahar Inter College Chhota Mawana, Meerut, it appears that date of birth of the prosecutrix is 20.10.2008 but in the certificate it has not been mentioned that from which Class to which Class prosecutrix studied in the school and what is the basis of her date of birth mentioned in the school record, therefore, in my view at this stage, merely on the basis of such certificate it cannot be said that prosecutrix was below 14 years of age at the time of incident.

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Further, during investigation ossification test of the prosecutrix was not conducted and even prosecutrix in her statement recorded under Section 164 Cr.P.C. disputed her date of birth mentioned by her parents in the school record.

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Further, neither in the statement under Section 161 Cr.P.C. nor in the statement under Section 164 Cr.P.C. prosecutrix made any allegation against the applicant and in both the statements she stated that according to her own she left her paternal home and on the way elder brother of applicant met and on her request he has taken her to his home and thereafter on her request marriage of applicant was performed with her.

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Law is settled that bail application should not be dismissed either for punitive or preventive purposes.

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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- Mustkim 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

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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 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 :- 22.8.2023

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SKM

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

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

Case brief

What is this about?

What did the court decide?

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

Case brief

What is this about?

What did the court decide?

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