Sonu Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:157622

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32223 of 2023

Applicant :- Sonu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Ram Jatan Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Ram Jatan Yadav, the learned counsel for applicant the learned A.G.A. for State and Mr. Upendra Kumar Pushkar, the learned counsel for opposite party-4, who has put in appearance by filing his vakalatnama today in Court, which is taken on record.

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Perused the record.

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This application for bail has been filed by applicant Sonu seeking his enlargement on bail in Case Crime No. 108 of 2023, under Sections 363, 366, 376 IPC and Section 3/4 (2) POCSO Act, Police Station- Lodha, District Aligarh, during the pendency of trial.

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Record shows that in respect of an incident which is alleged to have occurred on 26.5.2023, a belated F.I.R. dated 27.5.2023 was lodged by first informant- Rakesh Kumar and was registered as Case Crime No. 108 of 2023, under Sections 363, 366, 376 IPC and Section 3/4 (2) POCSO Act, Police Station- Lodha, District Aligarh. In the aforesaid F.I.R. the applicant has been nominated as solitary named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that daughter of first informant had left home on 26.5.2023 for village Bhagepur. However, she did not return home. First informant has apprehension that named accused has enticed away the daughter of first informant.

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After aforementioned F.I.R. was lodged, investigating Officer proceeded with statutory investigation of concerned case crime number in terms Chapter XII Cr.P.C.

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The prosecutrix was recovered on 29.05.2023. Thereafter,

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Investigating Officer recorded the statement of prosecutrix under Section 161 Cr.P.C., which is on record at page 26 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. To the contrary, she has stated that she is in love with applicant and accompanied the applicant to Delhi. She further stated that she has solemnized marriage with applicant and physical relations were also maintained between herself and applicant, on account of the fact that they were living together as husband and wife. Thereafter the prosecutrix was medically examined. The prosecutrix in her statement before the Doctor has reiterated her earlier statement under section 161 Cr.P.C. The Doctor who medically examined the prosecutrix did not find any injury on her body so as to denote commission of sexual assault. However, with regard to the private part of the prosecutrix, the Doctor opined as follows:-

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"Teared Hymen"

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Certain samples were taken from the body of the prosecutrix for pathological examination. However, supplementary medico legal report of the prosecutrix has not been brought on record. As per medical opinion prosecutrix is said to be aged about 17 years. Ultimately, the statement of the prosecutrix was recorded under section 164 Cr.P.C. which is on record at page 47 of the paper book. Prosecutrix in her aforesaid statement has departed from her earlier statement recorded under section 161 Cr.P.C. During course of investigation, Investigating Officer recovered the School Leaving Certificate of the prosecutrix, wherein her date of birth is mentioned as 15.2.2008. The occurrence giving rise to present criminal proceedings occurred on 1.1.2009. As such, prosecutrix was aged about 15 years and three months on the date of occurrence. On the above premise, Investigating Officer came to the conclusion that offence under section 376 IPC and 3/4 POCSO Act is also made out against applicant. Accordingly, Investigating Officer submitted charge sheet dated 10.6.2023.

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Learned counsel for applicant contends that though the applicant is named and charge sheeted accused but he is innocent. As such, he is liable to be enlarged on bail. Referring to the statement of the prosecutrix as recorded under section 161 Cr.P.C. he submits that prosecutrix is a willing and consenting party. Prosecutrix remained consistent in her statement under section 161 Cr.P.C. before the Doctor but ultimately, departed from her earlier statement in her subsequent statement recorded under section 164 Cr.P.C. No explanation has come forward regarding aforesaid anomaly. As such, the statements of prosecutrix when examined as a whole do

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not fall in the realm of impeccable evidence. With regard to the age of the prosecutrix, the learned counsel for applicant contends that date of birth of a child has to be concluded as per the procedure provided in Section 94 of the Juvenile Justice (Care and Protection) of Children Act of . He, therefore, contends that the age of the prosecutrix can be decided only according to aforesaid section and not otherwise. As such, the School leaving certificate of a child is immaterial for determining the age of the prosecutrix. As such no reliance can be placed upon the school leaving certificate of the prosecutrix for determining her age as per the date of birth recorded thereon . Attention of the Court was invited to the judgement of Supreme Court in P. Yuvaprakash Vs. State, 2023 Live Law (SC) 538 , wherein it has been held that age of the prosecutrix cannot be determined with reference to the date of birth of prosecutrix recorded in Scholar Register. It is lastly contended that Police report in terms of Section 173(2) Cr.P.C has been submitted. As such, the entire evidence sought to be relied upon by 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. Referring to the provisions of Section 11 (2) of Hindu Marriage Act, it is contended by the learned counsel for applicant that even though the prosecutrix was below 18 years of age on the date of marriage but the marriage of the applicant with the prosecutrix shall not be void but voidable at the instance of the prosecutrix by virtue of section 11 (2) of the Hindu Marriage Act. However, no proceedings have been initiated by prosecutrix for declaration of her marriage with applicant as void. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 30.5.2023. As such, he has undergone more than two months of incarceration. It is thus urged 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 trial.

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Per contra, the learned A.G.A. for State and Mr. Upendra Kumar Pushkar, the learned counsel for opposite party-4, have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. As per school leaving certificate, the prosecutrix is minor and below 16 years of age. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by learned counsel for 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, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that prosecutrix in her statement under section 161 Cr.P.C, . before the Doctor has not supported the F.I.R, departure made from the previous statement in the subsequent statement under section 164 Cr.P.C. remains unexplained upto this stage, as per medical opinion, prosecutrix is aged about 17 years, reliance placed upon the date of birth of the prosecutrix recorded in the Scholar Registar. Copy of which is on record at page 49 of the paper book is illegal by virtue of the provision contained in Section 54 of the Juvenile Justice (Care and Protection) of Children Act, 2015, as well as the judgement of Supreme Court in P. Yuvaprakash Vs. State, 2023 Live Law (SC) 538, prosecutrix has solemnized marriage with the applicant, though the prosecutrix was below 18 years of age on the date of her marriage with the applicant but the same shall voidable not void, nothing has been brought on record to show that prosecutrix has initiated proceedings for declaration of her marriage with applicant as void, clean antecedents of applicant, period of incarceration undergone and also the fact that charge sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during pendency of trial. judgment of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373 , but without making any comment on the merits of the case, 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 Sonu , be released on bail in the aforesaid case crime number on furnishing a personal bond and 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/SHE 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

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HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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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 SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER 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/her 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 :- 7.8.2023 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

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

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