Allowed

Prince Yadav @ Golu v. State of U.P. and 3 Others

Allahabad HC7 Aug 2023BAIL/32300/2023

Case brief

AI extract

What is this about?

In a bail application under Sections 376 and other IPC provisions and POCSO Act, the High Court allowed the release of the accused who was in custody. The Court held that the FIR lacked specific details of the occurrence, the prosecutrix's statement indicated prior consensual relations, and the accused had clean antecedents and had already undergone significant incarceration.

What did the court decide?

Release of the applicant on personal bond and two sureties with conditions including attending retrieval trial proceedings.

Prince Yadav @ Golu Vs State of U.P. and 3 Others — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:157639

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32300 of 2023

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Applicant :- Prince Yadav @ Golu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mahendra Pal Singh Gaur,Pradeep Kumar Pal Counsel for Opposite Party :- G.A.,Abida Syed

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Hon'ble Rajeev Misra,J.

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Heard Mr. M.P. Singh Gaur, the learned counsel for applicant, the learned A.G.A. for State and Dr. Abida Syed, the learned counsel representing opposite party 4, High Court Legal Services Committee.

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Perused the record.

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At the very outset, the learned A.G.A. submits that notice of present application for bail has been served upon first informantopposite party 2 on 12.07.2023. However, inspite of service of notice, no one has put in appearance on behalf of first informantoppoiste-party-2 to oppose the this application for bail.

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This application for bail has been filed by applicant-Prince Yadav @ Golu, seeking his enlargement on bail in Case Crime No. 114 of 2023, under Sections 376, 504, 506 IPC and Sections 3/4 POCSO Act, Police Station-Bakewar, District-Etawah during the pendency of trial.

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Record shows that an FIR dated 16.03.2023 was lodged by first informant/prosecutrix namely Vaishnavi Yadav and was registered as Case Crime No. 114 of 2023, under Sections 147, 376, 504, 506 IPC, Police Station-Bakewar, District-Etawah. In the aforesaid FIR, 5 persons namely - (1) Prince Yadav @ Golu, (2) Anita Yadav, (3) Aman Yadav, (4) Saurav Yadav and (5) Gaurav Yadav have been nominated as named accused.

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The gravamen of the allegations made in the FIR is to the effect that acquaintance developed between applicant and the prosecutrix sometime in the year, 2020. Thereafter, the applicant is alleged to have dislodged the modesty of the prosecutrix. Subsequently, a promise of marriage also alleged to have been extended by the

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applicant to the prosecutrix. The FIR concluded with the allegation , the applicant deliberately and forcibly dislodged the modesty of the prosecutrix by committing rape upon her and ultimately, resiled from the promise of marriage.

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After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C.. Same is on record at page 27 of the paper book. From the perusal of the said statement, it is apparent that the parties became acquainted to each other on 15.05.2020. As per the aforesaid statement of the prosecutrix, physical relations were maintained between the parties repeatedly before lodging of the FIR i.e. 3 years before the lodging of the FIR. 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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"hymen - torn, healed

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Perineum - NAD

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External Urethral Meatus - NAD"

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The final opinion submitted by the Doctor is as under:-

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" No sign of ext. or int. injury seen.

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No sign of force or forceful penetration of vagina. However, F.S.L. report awaited before giving opinion regarding sexual offence."

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Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., the same is on record at page 42 of the paper book. The prosecutrix in her aforesaid statement has rejoined her earlier statement recorded under Section 161 Cr.P.C.

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During course of investigation, Investigating Officer recovered High School Certificate of the prosecutrix. The same is evident from CD Paper No.-4, the photo copy of which is on record at page 70 of the paper book. As per the said document, the date of birth of the prosecutrix as recorded in the High School Certificate is 01.07.2003. As such, prosecutrix was aged about 20 years and 3 months on the date of the FIR. On the above premise, the Investigating Officer concluded that offence under Section 376

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IPC and 3/4 POCSO Act is also made out against applicant. He, accordingly submitted the charge sheet dated 24.05.2023 whereby applicant has been charge sheeted under Section 376, 504, 506 IPC and Sections 3/4 POCSO Act whereas the other named accused have been charge sheeted under Section 504 IPC.

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Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. He has then invited the attention of Court to the FIR and on basis thereof, he contends that neither in the column of the FIR regarding date, time and place of occurrence nor in the body of the FIR, the date, time and place of alleged occurrence has been detailed. The genesis of the FIR as per the statement of the prosecutrix herself, is that the prosecutrix and the applicant were in acquaintance with each other for the last 3 years. Physical relations between the parties were being maintained upon consent for the last 3 years. He, therefore, submits that the FIR is highly belated. However, neither in the FIR nor in the statement of the prosecutrix any explanation regarding the delay in lodging the FIR has been offered. Referring to the judgment of Supreme Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866/2019(5) SCC 403 (paragraph 8) as well as the subsequent judgment of the Supreme Court in Criminal Appeal No. 442 of 2022 (Mandar Deepak Pawar Vs. State of Maharashtra and Another) decided on 27.07.2022, he contends that since the delay in lodging the FIR has not been explained, applicant is, therefore, liable to be enlarged on bail. Even otherwise, the prosecutrix is major as per the recital contained in CD-4, which is on record at page 70 of the paper book. With regard to the alleged occurrence which occurred much prior to the date of the lodging of the FIR, the learned counsel for applicant contends that the same could not be established by the prosecutrix herself.

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Even otherwise, 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 03.05.2023. As such, he has undergone more than 3 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends 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. and Dr. Abida Syed, the learned counsel representing opposite party 4 have vehemently 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. Applicant is guilty of dislodging the modesty of the prosecutrix, who is a young girl aged about 20 years, repeatedly and continuously primarily on the ground of false promise of marriage. 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 the 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, Dr. Abida Syed, the learned counsel representing opposite party 4, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that prima-facie the prosecutrix is a willing and consenting party, the prosecutrix is major on the date of lodging of the FIR, in the day, date and time column of the FIR, no details have been mentioned, the date, time and place of the occurrence has not been mentioned in the body of the FIR, even though, reference has been made more than 1 occurrence, in the FIR but there is no allegation that the applicant dislodged the modesty of the prosecutrix by extending false promise of marriage by virtue of above, the law laid down by Apex Court in the following judgments of the Supreme Court in (i). Sonu alias Subhash Kumar Vs. State of U.P., 2021 SCC OnLine SC 181, (ii). Pramod Suryabhan Pawar Vs. State of Maharashtra, 2019 SCC OnLine SC 1073, (iii). Maheshwar Tigga Vs. State of Jharkhand (2020) 10 SCC 108, (iv). Criminal Appeal No. 442 of 2022 (Mandar Deepak Pawar Vs. State of Maharashtra and Another) decided on 27.07.2022 & (v). Naim Ahmed Vs. State (NCT of Delhi), 2023 SCC OnLine SC 89 are not attracted, the clean antecedents of the applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized yet the learned A.G.A. and the learned counsel representing opposite party 4 could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.

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15. Accordingly, the bail application is allowed .

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Let the applicant-Prince Yadav @ Golu, be released on bail in the aforesaid case crime number on his 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 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 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/Vinay

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

Prince Yadav @ Golu v. State of U.P. and 3 Others

Case brief

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Prince Yadav @ Golu v. State of U.P. and 3 Others

Case brief

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