Ashutosh Vs State of U.P. Adn 3 Others

Court No. - 79

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54576 of 2022

Applicant :- Ashutosh Opposite Party :- State Of U.P. Adn 3 Others Counsel for Applicant :- Ajay Sengar Counsel for Opposite Party :- G.A.,Deenanath Mishra

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Hon'ble Krishan Pahal,J.

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List has been revised.

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Heard Sri Ajay Sengar, learned counsel for the applicant, Sri Deenanath Mishra, learned counsel for the informant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the record.

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Applicant seeks bail in Case Crime No. 0396 of 2022, under Sections 363, 366, 328, 376(2)(n) I.P.C. and 5(l)/6 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, Police Station Ghatampur, District Kanpur Nagar, during the pendency of trial.

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As per the allegations in the FIR, daughter of the informant aged about 16 years, is stated to have left for her school on 7.7.2022 at about 8.00 am and had not returned back.

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Learned counsel for the applicant has stated that the applicant and the victim are relatives, and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned counsel has further stated that the victim had gone with the applicant out of her own sweet will all the way to Ahmedabad, Gujarat, whereby she stayed there. Learned counsel has also stated that the applicant is not named in the FIR and there are no allegations of sexual assault against the applicant in the statement of the victim recorded under Section 161 Cr.P.C. Learned counsel has also stated that later on, during the statement of the victim recorded under Section 164 Cr.P.C., the allegations have been inflated and, as such, the applicant has been nominated to have committed rape with her. It is next stated that the said statement has been recorded after legal consultation and

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deliberations, as it has been recorded after 11 days from the date of recording of the statement of the victim. Learned counsel has next stated that as per the school certificate, the age of the victim was more than 16 years. Learned counsel has next stated that with respect to the age of the victim, a leverage of two years can be granted to the applicant on the upper side in view of the settled law of the Apex Court.

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Learned counsel has next stated that as per the school certificate, date of birth of the victim is 7.1.2006. Learned counsel for the applicant has placed much reliance on the settled case law of the Apex Court in Sushil Kumar vs. Rakesh Kumar, (2003) 8 SCC 673, wherein it has been stated that it is more often in the Indian Society that person shows the age of their wards much below than their actual age. Learned counsel has submitted that at the time of medical examination, the victim had refused for external and internal examination and has not put any allegation of sexual assault against the applicant.

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Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 4.8.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

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Per contra, learned A.G.A. and learned counsel for the informant have vehemently opposed the bail application and have stated that as per her school certificate, the victim was minor, as such, her consent pales into insignificance, but they are unable to dispute the fact that no allegations were raised against the applicant regarding sexual assault at the time of medical examination.

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Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, pending trial and considering the complicity of accused, severity of punishment, at this stage, without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed .

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Let the applicant- Ashutosh involved in aforementioned

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case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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i. The applicant will not tamper with the evidence during the trial.

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ii. The applicant will not pressurize/ intimidate the prosecution witness.

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iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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iv. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion on the testimony of the witnesses.

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Order Date :- 20.3.2023 Shalini

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Digitally signed by :- SHALINI JAISWAL High Court of Judicature at Allahabad

Ashutosh v. State of U.P. Adn 3 Others

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Ashutosh v. State of U.P. Adn 3 Others

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