Allowed

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

Allahabad HC22 Aug 2023BAIL/34184/2023

Case brief

AI extract

What is this about?

In a bail application under Sections 363, 366, 376 IPC and POCSO regarding the enticement and assault of a minor, the court considered conflicting evidence from the prosecutrix. Citing the crystallisation of evidence, the applicant's clean antecedents, and prolonged incarceration, the court allowed bail subject to strict conditions.

What did the court decide?

Release on bail by personal bond and two sureties with conditions to not tamper with evidence, appear daily, and avoid unlawful activities.

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

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Neutral Citation No. - 2023:AHC:168443

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34184 of 2023

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Applicant :- Ankur Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Akhilesh Srivastava,Saksham Srivastava

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Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Akhilesh Srivastava, 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-Ankur Kumar seeking his enlargement on bail in Case Crime No. 65 of 2023 under Sections 363, 366, 376 I.P.C. and Sections 3/4, POCSO Act, Police Station-Barla, District-Aligarh, 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-2 on 14.07.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose the present application for bail.

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Record shows that in respect of an incident which is alleged to have occurred on 06.04.2023, a delayed F.I.R dated 07.04.2023 was lodged by first informant Manik Chandra (father of the prosecutrix) and was registered as Case Crime No. 65 of 2023 under Sections 363, 366 I.P.C. Police StationBarla, District-Aligarh. In the aforesaid F.I.R. applicant Ankur

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Kumar 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 named accused Ankur Kumar is alleged to have enticed away the minor daughter of the first informant namely X, aged about 16 years.

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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 The prosecutrix was recovered on 07.04.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 34 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.IR. To the contrary she has stated that she willingly accompanied the applicant. Thereafter, the prosecutrix was requested for her medical examination. However, the same was initially refused by her. However, an application was filed by the father of the prosecutrix. It is thereafter internal medical examination of the prosecutrix was conducted. The Doctor who medically examined the prosecutrix did not find any signs on the body of prosecutrix 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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Hyman- Old torn, BPV+, (N) raptured, SPV+

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However, cloth of prosecutrix was recovered and was sent for examination to the Forensic Science Laboratory. The statement of prosecutrix was thereafter recorded under Section 164 Cr.P.C., which is on record at page 62 of the paper book. The prosecutrix in her aforesaid statement has departed from her earlier statement under section 161 CrP.C. Subsequently F.S.F. report was received, copy of the same is on record at page 53 of the paper-book. As per F.S.L. report, spermatozoa was found on the clothes of the prosecutrix.

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During course of investigation, Investigating Officer recovered High School Certificate of the prosecutrix in which the date of birth of the prosecutrix is recorded as 19.08.2006. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 06.04.2023. As such, the prosecutrix was aged about 16 years and 7 months 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 offence under Section 376 I.P.C. and Section 3/4 D. P. Act is also made out against applicant. Accordingly, Investigating Officer, submitted the charge sheet dated 30.05.2023 whereby applicant has been charge sheeted under Sections 363, 366 376 I.P.C. and Section 3/4 POCSO Act 10. Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted yet he is liable to be enlarged on bail. The prosecutrix in her statement under Section 161 Cr.P.C., before Doctor and under Section 164 Cr.P.C, has neither detailed the manner of occurrence nor she has implicated the applicant for having committed aggravated sexual assault upon the prosecutrix. When the aforesaid statement of the prosecutrix are taken as a whole then they do not fall in the category of impeccable evidence. Referring to the judgement of apex Court in Phool Singh Vs. State of Madhya Pradesh, (2022) 2 SCC 74 he submits that conviction of an accused for an offence of rape and 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

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test is applied to the statements of prosecutrix, referred to above, then 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 Sections 363, 366, 376 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 11.04.2023. As such he has undergone more than four 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 charge-sheet accused, therefore he does not deserve any indulgence by this Court. He further submits that commission of aggravated sexual assault upon the prosecutrix is clearly established form the FSL report, copy of the which is on record at page 63 of the paper book. The prosecutrix is a young girl aged about below 16 years and 7 months on the date of occurrence, whose modesty has been dislodged by applicant. However, he could not definitely submit that the charge alleged

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against applicant 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 previous statement under Section 161 Cr.P.C., no explanation has been offered by the prosecutrix with regard to the embellishment made by the prosecutrix in her subsequent 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 the learned A.G.A. could be pointed out any such circumstance 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, 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- Ankur Kumar involved in aforesaid case crime number be released on bail 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

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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 :- 22.8.2023 YK

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

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

Case brief

What is this about?

What did the court decide?

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

Case brief

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