Sumit Yadav Vs State of U.P. and 3 Others

Neutral Citation No. - 2023:AHC:187803

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35987 of 2023

Applicant :- Sumit Yadav Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Lavkush Kumar Bhatt Counsel for Opposite Party :- G.A.,Rakesh Kumar Yadav

¶5

Hon'ble Rajeev Misra,J.

¶6

Heard Mr. Lavkush Kumar Bhatt, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rakesh Kumar Yadav, the learned counsel representing opposite party-2-first informant .

¶7

This application for bail has been filed by applicant Sumit Yadav seeking his enlargement on bail in Case Crime No. 99 of 2023, under sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station- Merapur, District Farrukhabad during the pendency of trial.

¶8

Perused the record.

¶9

Record shows that in respect of an incident which is alleged to have occurred on 9.5.2023, a prompt F.I.R. dated 12.5.2023 was lodged by first informant Rajesh Kumar and was registered as Case Crime No. 99 of 2023, under sections 363, 366, 376 IPC and Section 3/4 POCSO Act, Police Station- Merapur, District Farrukhabad. In the aforesaid F.I.R. applicant has been nominated as solitary named accused.

¶10

The gravamen of the allegations made in the F.I.R. is to the effect that named accused enticed away the minor daughter of first informant i.e. the prosecutrix, namely X.

¶11

After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. It is apposite to mention here that prosecutrix was recovered on the date of occurrence i.e. 9.5.2023 itself. Investigating Officer thereafter recorded the statement of prosecutrix under section 161 Cr.P.C. Copy of same is on record at page 30 of the paper book. The prosecutrix in her aforesaid statement has not supported the F.I.R. As per the said statement the prosecutix is a willing and consenting party. Thereafter the

¶12

prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor departed from her previous statement under Section 161 Cr.P.C. and implicated the applicant in the crime in question. However, the Doctor who medically examined the prosecutrix did not find any sign on her body so as to denote commission of sexual assault. With regard to the private part of the prosecutrix, the Doctor opined as follows:

¶13

"Hymen Old healed torn."

¶14

Certain samples were taken from the body of the prosecutrix for pathological examination. However, the report of the supplementary medico legal examination is in the negative. Thereafter the statement of the prosecutrix was recorded under section 164 Cr.P.C. Copy of same is on record at page 36 of the paper book. The prosecutrix in her said statement has again departed from her previous statement recorded under section 161 Cr.P.C and has rejoined her statement before the Doctor. During course of investigation, Investigating Officer recovered the High School certificate of the prosecutrix, wherein her date of birth is recorded as 1.6.2006. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 9.5.2023. As such, the prosecutrix was aged about 16 years and nine months and on date of occurrence.

¶15

During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. The witnesses so examined have supported the F.I.R. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly submitted the charge sheet dated 21.6.2023, whereby applicant has been charge sheeted under sections 263, 366, 376 IPC and Section 3/4 POCSO Act.

¶16

Learned counsel for applicant submits that though the applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. Attention of the Court was invited to the statements of the prosecutrix referred to above and on basis thereof he submits that prosecutrix has not remained clear, categorical and consistent in above mentioned statements. To the contrary, prosecutrix has been inconsistent and contradictory in her aforesaid statements. Even otherwise the medical evidence does not support the ocular version. Referring to the judgement of Supreme Court in Phool Singh Vs. State of M.P. (2022) 2 SCC 74 he submits that prosecution of an accused for an offense of rape

¶17

or sexual assault can be maintained even in the absence of medical evidence and on the solitary statement of prosecutrix. However, in such a circumstance, the statement of the prosecutrix must be clear, categorical consistent. When the statements of the prosecutrix referred to above are examined as a whole an in the light of above, then it cannot be said that the same are of impeccable character.

¶18

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 16.5.2023. As such, he has undergone more than three months of incarceration. The Police report in terms of Section 173(2) has already been submitted against applicant therefore the entrie evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. 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 the trial.

¶19

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is young girl aged about 16 years and 9 months, whose modesty has been dislodged by applicant. Consequently, the provisions of POCSO Act are clearly attracted. Since prosecutrix is below 18 years of age, therefore her consent is any is immaterial. They therefore, contend that 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.

¶20

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offense as well as complicity of applicant, accusation made coupled with the fact that medical evidence does not support the ocular version of the occurrence, the opinion expressed by the Doctor who medically examined the prosecutrix with regard to the private part of the prosecutrix, the statement of prosecutrix recorded under section 161 Cr.P.C. before the Doctor and under section 161 Cr.P.C. are inconsistent and contrary, as such, the statements of prosecutrix when examined as a whole do not fall in the realm of impeccable evidence, judgement of Supreme Court in Phool Singh (Supra) , police report in terms of Section 173 (2) Cr.P.C. has already been submitted against

¶21

applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the period of incarceration undergone, the clean antecedents of applicant, therefore irrespective of the submissions urged by the learned A.G.A. and the learned counsel for first informant in opposition to the present application for bail but without making any comment on the merits of the case, applicant has made out a case for bail.

¶22

Accordingly, the bail application is Allowed.

¶23

Let the applicant- Sumit Yadav, 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:-

¶24

(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.

¶25

(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.

¶26

(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.

¶27

(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.

¶28

(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.

¶29

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.

¶30

Order Date :- 26.9.2023 Arshad

¶31

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

Sumit Yadav v. State of U.P. and 3 Others

Case brief

What is this about?

Sumit Yadav v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Ravindra Vs State of U.P. and 3 Others

Chandan Gond Vs State of U.P. and 3 Others

Gyan Bahadur Vs State of U.P. and 3 Others

Shyampal Vs State of U.P.

Kunwar Singh@ Nanhe Singh Vs State of U.P.

Raees Ahmad Vs State of U.P.