Babloo Kumar Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:153796

Court No. - 70

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30715 of 2023

Applicant :- Babloo Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ajeet Dixit Counsel for Opposite Party :- G.A.

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Hon'ble Sameer Jain,J.

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Sri Imran Khan, learned AGA, for the State, apprised the Court that on 13.7.2023 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 Ajeet Dixit, learned counsel for the applicant and Sri Imran Khan, learned AGA, for the State 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.1488 of 2022, under Sections 363 and 376 IPC and Section 5L/6 POCSO Act, Police Station Sahibabad, District Ghaziabad during pendency of the trial.

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FIR of the present case was lodged against the applicant under Section 363 IPC on 14.9.2022 and according to the FIR, on 8.8.2022 applicant enticed away the daughter of the informant aged about 15 years. It is further mentioned in the FIR that about two years before also daughter of the informant had gone somewhere and in this regard on 28.6.2022, he lodged an FIR under Section 363 IPC.

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Learned counsel for the applicant submits that FIR of the

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present case was lodged after more than a month from the date of alleged enticement by applicant. He further submits that actually victim of the case is a major girl aged about 18 years and applicant and victim both were having love affair and victim according to her own desire had gone along with applicant and also performed marriage with him and this fact is even evident from her both the statements recorded under Sections 161 and 164 Cr.P.C. during investigation.

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He next submits that although as per school record of the victim, her date of birth is 25.10.2007 and at the time of incident she was around 15 years old but during investigation after recovery ossification test of the victim was not conducted and physical appearance wise victim appears to be aged about 18 years old and, therefore, at this stage it cannot be said that victim is either below 18 years old girl or on the date of incident she was about 15 years.

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He further submits that applicant is a young boy aged about 21 years old and this fact is even evident from the charge sheet filed in support of the instant bail application.

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He further submits that applicant is not having any previous criminal history and he is in jail in the present matter since 3.11.2022.

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Per contra, learned AGA opposed the prayer for bail and submits that as per school record the age of victim was around 15 years at the time of incident, therefore, her consent is immaterial but he conceded that during investigation her ossification test was not conducted and as per charge sheet applicant is around 21 years old.

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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 certificate given by the Principal of the concerned School it appears that at the time of incident victim was around 15 years old but during investigation ossification test of the victim was not conducted.

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Further, from the statement of the Principal which was recorded by Investigating Officer during investigation it appears that she did not disclose the source of date of birth of the victim mentioned in the school record. Therefore, at this stage merely on the basis of date of birth furnished by the Principal of the School precisely it cannot be said that victim was around 15 years old at the time of incident.

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Further, victim in her both the statements recorded under Sections 161 and 164 Cr.P.C. did not make any allegation against the applicant and categorically stated that she on her own had gone along with him and also performed marriage with him.

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Further, from the charge sheet filed against the applicant it also reflects that applicant is about 21 years old and therefore, present case appears to be a case of adolescent love affair.

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Further, applicant is not having any previous criminal history and in the present matter he is in jail since November, 2022, i.e.,, for the last about more than 9 months.

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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- Babloo Kumar 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 evidence.

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(iii) The applicant shall not indulge in any criminal and anti-social activity.209. 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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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 :- 2.8.2023

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SKM

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

Babloo Kumar v. State of U.P. and 3 Others

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Babloo Kumar v. State of U.P. and 3 Others

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