Allowed

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

Allahabad HC21 Aug 2023BAIL/32472/2023

Case brief

AI extract

What is this about?

The High Court allowed the bail application of an applicant charged with rape and offenses under the POCSO Act. The court granted bail noting the prosecutrix's inconsistency in statements, the applicant's clean antecedents, and the lack of circumstances necessitating continued custodial arrest.

What did the court decide?

The applicant was released on bail upon furnishing a personal bond and two sureties, subject to standard conditions.

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

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Neutral Citation No. - 2023:AHC:167718

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32472 of 2023

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Applicant :- Lavkush Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rakesh Chandra Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Rakesh Chandra, the learned counsel for applicant and the learned A.G.A. for State

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Perused the record.

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Instant application for bail has been filed by applicant-Lavkush seeking his enlargement on bail in Case Crime No. 73 of 2023 under Sections 376, 506 I.P.C. and Sections 3/4, POCSO Act, Police Station-Ghorawal, District-Sonebhadra, during the pendency of trial.

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At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-4 on 14.07.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-4 to oppose present application for bail.

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Record shows that in respect of an incident which is alleged to have occurred in between 06.05.2023 and 07.05.2023, a delayed F.I.R dated 12.05.2023 was lodged by first informant Surendra (brother of the prosecutrix) and was registered as Case Crime No. 73 of 2023 under Sections 376, 506 I.P.C. and Sections 3/4, POCSO Act, Police Station-Ghorawal, District-Sonebhadra. In the

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aforesaid F.I.R. applicant Lovkush 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 as per recital contained in the F.I.R., the prosecutrix is alleged to have informed the first informant that applicant enticed away the prosecutrix and thereafter deliberately and forcibly dislodged the modesty by committing rape upon her.

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After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 28 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.IR. However, from the said statement is is apparent that prosecutrix is a willing and consenting party inasmuch as she willing accompanied the applicant. Thereafter, the prosecutrix was requested for her medical examination. The Doctor who medically examined the prosecutrix did not find any signs on the body of prosecutrix so as to denote commission of sexual violence. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same is in negative. Age of the prosecutrix was determined upon medical examination in between 16 to 17 years. The statement of prosecutrix was thereafter recorded under Section 164 Cr.P.C., which is on record at page 15 of the supplementary affidavit filed in support of present bail application. The prosecutrix in her aforesaid statement has departed from her earlier statement under section 161 CrP.C.. In her aforesaid statement she has not only implicated the applicant but also one Babu Lal in the commission of the crime in

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question.

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During course of investigation, Investigating Officer examined the Principal of the institution where the prosecutrix had first studied. Copy of the same is on record at page 43 of the paper book. As per the statement of Principal the date of birth of the prosecutrix as recorded in school records i.e. institution where she first studied is 20.07.2002. The occurrence giving rise to present application is alleged to have occurred on 06.05.2023. As such, the prosecutrix was aged about 17 years, 9 months and 16 days on the date of occurrence. During course of investigation, Investigating officer examined first informant and other witnesses under Section 161 Cr.P.C. who have substantially supported the F.IR. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. Accordingly, Investigating Officer, submitted the charge sheet dated 04.06.2023 whereby applicant has been charge sheeted under Sections 376, 506 I.P.C. and Section 3/4 POCSO Act

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Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in the crime in question. Referring to the statement of the prosecutrix, as noted above, he submits that prosecutrix is a consenting party as she willing accompanied the applicant. With reference to the statement of the prosecutrix as recorded under Section 164 Cr.P.C., the learned counsel for applicant submits that the prosecutrix in her aforesaid statement has departed from her earlier statement recorded under Section 161 Cr.P.C. Referring to the judgement of apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74 he

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submits that conviction of an accused for an offence of rape or sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of the prosecutrix. However, in such a circumstance, the statement of the prosecutrix must be clear, categorical, consistent and unambiguous. When the aforesaid test is applied to the statements of prosecutrix, referred to above, it cannot be said that the statements of prosecutrix when examined as a whole, fall in the category of impeccable evidence. As such, prosecution of applicant under Sections376, 506 I.P.C. and Section 3/4 POCSO Act cannot be maintained..

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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 custody since 15.05.2023. As such he has undergone more than three months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Referring to the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the learned counsel for applicant submits 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. has opposed the prayer for bail. He submits that since the applicant is a named as well as chargesheet accused, therefore he does not deserve any indulgence by this Court. He further submits that the prosecutrix is a young girl aged about below 18 years on the date of occurrence, whose

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modesty has been dislodged by applicant. However, he could not definitely submits that the charge alleged is clearly established against applicant nor could be dislodged 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, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that the prosecutrix in her statement under Section 164 Cr.P.C. has departed form her earlier statement under Section 161 Cr.P.C., no explanation has been offered with regard to the embellishment made by the prosecutrix in her statement under Section 164 Cr.P.C. the judgement of apex court in Phool Singh (Supra) referred to above, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, yet in spite of above no such circumstance could be pointed out by the learned A.G.A. necessitating the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) , the period of incarceration undergone by applicant and the clean antecedents of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly, present application for bail is allowed .

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Let the applicant- Lavkush involved in aforesaid case crime number be released on bail on his furnishing a personal bond and

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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) Applicant will not tamper with prosecution evidence.

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(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison

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Order Date :- 21.8.2023 YK

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

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

Case brief

What is this about?

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

Case brief

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