Allowed

Prashant Sharma v. State of U.P. and 3 Others

Allahabad HC18 Aug 2023BAIL/30091/2023

Case brief

AI extract

What is this about?

In a bail application under Sections 376, 323, 504, 506 IPC and POCSCA/SC/ST Acts, the court allowed bail for the applicant. It observed that co-accused were already on bail, the applicant was young with clean antecedents, and medical evidence did not conclusively support the allegation of forceful sexual assault, though merits were not fully commented upon.

What did the court decide?

The applicant Prashant Sharma is released on bail on a personal bond with two sureties in like amounts subject to conditions.

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

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Neutral Citation No. - 2023:AHC:166450

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30091 of 2023

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Applicant :- Prashant Sharma Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sanjeev Kumar Gaur,Babita Upadhyay Counsel for Opposite Party :- G.A.,Afshan Shafaut,Mukti Nath Dwivedi

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Hon'ble Rajeev Misra,J.

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Heard Mrs. Babita Upadhyay, the learned counsel for applicant, the learned A.G.A. for State, Mr. Mukti Nath Dwivedi, the learned counsel representing first informantopposite party-2 and Ms. Afshan Shafaut, the learned counsel representing opposite party-3.

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This application for bail has been filed by applicant Prashant Sharma seeking his enlargement on bail in Case Crime No.142 of 2023, under Sections 376-D, 323, 504, 506/34 IPC, Section 5(g)/6 Pocso Act and Section 3(2)5 SC/ST Act, police station Katra, district Shahjahanpur, during the pendency of trial.

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Perused the record.

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Record shows that a first information report dated 21.03.2023 was lodged by first informant/prosecutrix, namely, X, which was registered as Case Crime No.142 of 2023, under Sections 376, 323, 504, 506 IPC, Section 3/4 Pocso Act, Section 3(2)(V) SC/ST Act, police station Katra, district Shahjahanpur. In the aforesaid F.I.R., two persons, namely, Prashant Sharma (applicant herein) and Aadil have been nominated as named accused, whereas a relative of Aadil has also been arraigned as an accused.

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The gravamen of the allegations made in the first information report dated 21.03.2023 is to the effect that the two named accused along with one not named accused are guilty of forcibly and deliberately dislodging the modesty of the prosecutrix by committing rape upon her.

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After aforesaid first information report was lodged, Investigating OfÏcer proceeded with statutory investigation of concerned Case Crime number in terms of Chapter XII CrPC. Thereafter, the statement of the prosecutrix was recorded under Section 161 CrPC, which is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has fully supported the allegations made in the FIR. Thereafter, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the

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Doctor has rejoined her earlier statement recorded under Section 161 CrPC. However, the Doctor who medically examined the prosecutix did not find any signs on her body so as to denote commission of sexual assault. With regard to the private part of the prosecutrix, the Doctor opined as follows :-

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"Hymen : Old torn."

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Ultimately, the statement of the prosecutrix was recorded under Section 164 CrPC, which is on record at page 45 of the paper book, wherein she has rejoined her earlier statements referred to above.

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During the course of investigation, Investigation OfÏcer recovered the High School Certificate of the prosecutrix wherein her date of birth is recorded as 10.01.2007. Consequently, on the date of occurrence i.e. 21.03.2023, the prosecutrix was aged about 16 years and two months. Investigating OfÏcer further examined other witnesses under Section 161 CrPC. On the basis of above and other material collected by him during the course of investigation, he came to the conclusion that the complicity of two of the named accused and Shahrukh Khan is fully established in the crime in question. He, accordingly, submitted charge-sheet dated 30.04.2023 against all accused under Sections 363, 366, 376, 506, 323 IPC, Section 3/4 Pocso Act, Sections 66, 67 Information Technology Act and Section 3(2)(V) SC/ST Act.

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At the very outset, the learned counsel for the applicant contends that two charge-sheeted accused, namely, Aadil and Shahrukh Khan have already been enlarged on bail. The details of the same are as under :-

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Co-accused Shahrukh Khan has been enlarged on bail by this Court vide order dated 05.07.2023 passed in Criminal Misc. Bail Application No.28088 of 2023 (Shahrukh Khan Vs. State of U.P.) and co-accused Aadil has been enlarged on bail by this Court vide order dated 17.07.2023 passed in Criminal Misc. Bail Application No.28968 of 2023 (Aadil Vs. State of U.P.).

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On the above premise, it is thus urged by the learned counsel for applicant that since criminality alleged against the chargesheeted accused is joint and common therefore, the applicant is also liable to be enlarged on bail on the ground of parity. It is next contended that though the prosecutrix in her statements recorded under Section 161/164 CrPC has supported the FIR, however, the medical evidence does not support the ocular version of the occurrence. This contradiction which has emerged on record has not been explained. Apart from above, the police report under Section 173(2) CrPC has already been submitted. As such the entire

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evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Even otherwise, applicant is a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. The applicant is in jail since 24.03.2023. As such he has undergone more than four and half months of incarceration. The applicant is a young boy aged about 19 years and has been falsely implicated in the present case on account of political party-bandi in the village and caste politics. It is thus contended by the learned counsel for applicant 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, the learned counsel representing first informant and the learned counsel representing opposite party-3 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 not deserve any indulgence by this court. As per the prosecution story as unfolded in the FIR and also the statements of the prosecutrix recorded under Section 161/164 CrPC, main role of dislodging the modesty of the prosecutrix has been assigned to the applicant. As such, the case of the present applicant is clearly distinguishable from other two charge-sheeted accused who have already been enlarged on bail. They therefore, contend that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for the applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, the learned counsel representing opposite party-3, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made coupled with the fact that though the prosecutrix in her statements recorded under Section 161/164 CrPC has fully supported the FIR but the medical evidence does not support the ocular version of the occurrence, the Doctor who has medically examined the prosecutrix did not find any signs on the body of the prosecutrix so as to denote commission of deliberate and forceful sexual assault, apart from above the opinion expressed by the Doctor with regard to private part of the prosecutrix also remains un-explained up to this stage, all the accused have been charge-sheeted under same sections therefore on the same set of circumstances no case is made out to distinguish the case of the present applicant to that of aforementioned bailed out co-

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accused so as to deny him bail, considering the nature of offence and also the fact that two other charge-sheeted coaccused have already been enlarged on bail, the applicant is a young boy aged about 19 years having clean antecedents, the judgement of Supreme Court in Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5) , the period of incarceration undergone, but without making any comments on the merit of the case, the applicant has made out a case for bail.

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Accordingly, the bail application is allowed .

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Let the applicant Prashant Sharma , 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 :-

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(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.

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(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 sufÏcient cause, the trial court may proceed against him under section 229-A I.P.C.

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(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.

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(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 sufÏcient 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.

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(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.

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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.

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Order Date :- 18.8.2023. Rks.

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

Prashant Sharma v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Prashant Sharma v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

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