Bail application rejected in PC and POCSO case involving abduction and sexual assault on a minor. Court found no sufficient ground for bail despite prosecutrix's prior conflicting statements, rejecting release.
Application for bail rejected; accused not enlarged.
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Neutral Citation No. - 2023:AHC:230134
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51926 of 2023
Applicant :- Sheru @ Rakesh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Dinesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The prosecutrix was recovered on 19.08.2023. Thereafter, the statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 31 of the paper book. The prosecutrix in her aforesaid statement has not supported the FIR. To the contrary, she has stated that she was in acquaintance with the applicant for the last 3 years. She herself joined the applicant and thereafter, accompanied him to different places. She further states that she has solemnized court marriage with the applicant. Subsequent to above, the prosecutrix was requested for her internal medical examination. However, the mother of the prosecutrix refused for her internal medical examination. As such, only external medical examination was conducted. However, the Doctor, who medically examined the prosecutrix, did not find any such signs on her body so as to denote commission of deliberate or forceful sexual assault. Subsequently, the ultrasound of the prosecutrix was conducted, copy of which is on record at page 49 of the paper book. As per the USG report, the prosecutrix was found to be in family way. The age of the fetus was reported to be 27 weeks and 6 days old. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., wherein the prosecutrix has departed from her previous statement under Section 161 Cr.P.C. and has now implicated the present applicant in the crime in question.
enlarged on bail. Referring to the statement of the prosecutrix recorded under Section 161 Cr.P.C., he submits that the prosecutrix is a willing and consenting party. As per the aforementioned statement of the prosecutrix itself, it is evident that applicant has neither abducted, kidnapped or enticed away the prosecutrix for the purpose of marriage or dislodging her modesty deliberately or forcibly. As such, no offence under Section 363, 366 IPC can be said to have been committed by the applicant. The prosecutrix in her aforesaid statement has further stated that she has solemnized marriage with the applicant. In view of above, the parties came into marital relationship as husband and wife. Consequently, no offence under Section 376(3) and Sections 3/4 POCSO Act can be said to have been committed by the applicant either. The departure made by the prosecutrix in her subsequent statement under Section 164 Cr.P.C. has not been explained up to this stage. She has not even contradicted her previous statement under Section 161 Cr.P.C., therefore, the statements of the prosecutrix when taken together do not fall in the category of impeccable evidence. As such, no prosecution of the applicant can be maintained on the basis of above. He, therefore, contends that applicant is liable to be enlarged on bail.
prosecutrix. However, there is nothing on record to show that consent of the parents is in existence qua the marriage of the prosecutrix with the applicant. On the above premise, the learned A.G.A. contends that no sympathy be shown by this Court in favour of applicant.
Order Date :- 5.12.2023 Vinay
Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad
1 issue framed by the court
Whether there is any good or sufficient ground to enlarge the accused on bail in a POCSO case where the prosecutrix was below 16 years of age.
Colour shows how this judgement treated each authority
X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194Referred¶19
X (Minor) Vs. The State of Jharkhand and Another 2022 LiveLaw (SC) 194
2 provisions across 2 enactments
Sheru @ Rakesh
State Of U.P.
Rajeev Misra
Vinay Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
