Allowed

Waseem v. State of U.P Thru. Addl. Chief Secy. Home Lko. and 4 Others

Allahabad HC8 May 2024CRLA/308/2024

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a bail application filed by an appellant convicted under IPC and P.O.C.S.O. Act offences. The court noted the victim was hostile and had not alleged substantive evidence against the appellant prima facie, granting bail subject to specific strict conditions.

What did the court decide?

Appellant released on bail with personal and surety bonds, subject to conditions including non-contact with victim, deposit of 50% fine, and cooperation in appeal.

Waseem vs State of U.P Thru. Addl. Chief Secy. Home Lko… — Bail and Remand | Allahabad HC (2024)

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Court No. - 16

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Case :- CRIMINAL APPEAL No. - 308 of 2024

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Appellant :- Waseem Respondent :- State Of U.P Thru. Addl. Chief Secy. Home Lko. And 4 Others Counsel for Appellant :- Rashmi Pandey,Abhishek Misra Counsel for Respondent :- G.A.,Alka Rani,Rupali Srivastava,Seema Upadhyay

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Hon'ble Mohd. Faiz Alam Khan,J.

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Order On Bail Application

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Counter affidavit/objections filed by the State and rejoinder affidavit to the same are taken on record.

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Heard Ms. Rashmi Pandey, learned counsel for the appellant/applicant as well as learned A.G.A. for the State, Shri Ambrish Kumar Maurya holding brief of Ms. Alka Rani, learned counsel appearing for the respondent nos.2 and 3 and perused the record.

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This bail application has been moved by the appellant/applicant/ Waseem, who is convict of Criminal Trial No.47 of 2018 (State vs. Waseem), arising out of Case Crime No.0114 of 2018, under Sections 363, 366, 376 I.P.C. and 3/4 of the P.O.C.S.O. Act, Police Station Kotwali Nagar, District Barabanki and sentenced for maximum term of 14 years rigorous imprisonment with fine stipulation, vide judgment and order dated 08.12.2023 passed by learned Additional Sessions Judge/Special Judge (P.O.C.S.O. Act), Court No.44, Barabanki praying to release him on bail, during pendency of instant appeal.

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Learned counsel for the appellant/applicant submits that the trial court has committed manifest illegality in appreciating the evidence available on record and has convicted the appellant for the offence(s), which has never been committed by the appellant/applicant.

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Elaborating further, it is submitted that after lodging of the F.I.R. on 19.02.2018, the victim/prosecutrix returned back to her home herself and her statement under Sections 161 and 164 Cr.P.C. was recorded, wherein she specifically stated that she had gone to the house of her friend and as it became late in the evening while she was returning from the home of her friend she had stayed in a park and when she got knowledge that the

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F.I.R. has been lodged she returned back, however, she has not been abducted by any person and a wrong criminal case has been lodged against the appellant/applicant. In her statement recorded under Section 164 Cr.P.C., she has categorically stated that she had gone with the appellant on 19.02.2018 at about 09:30am. with her free wish, will and volition and was taken to a room in Barabanki, where with her consent, she remained with the appellant for about six hours as she was in love with him and they wanted to solemnize marriage, however, they have never cohabited and she was not abducted by the appellant and nothing wrong has been done by him and whatever had happened, the same had happened with her consent and free wish and volition.

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Learned counsel for the appellant has also drawn attention of this Court towards the statement of the prosecutrix recorded before the trial court as P.W.-2, wherein also she has not levelled any allegation against the appellant and in the cross examination as stood her examination in chief and has denied to have given any statement as recorded by the investigating officer under Section 161 Cr.P.C.

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Elaborating the above statement of the prosecutrix, it is vehemently submitted that the trial court has not considered the fact that even to draw any presumption, if the same has been provided in any statute, the prosecution is duty bound to prove the initial facts, on the basis of which any presumption could be drawn and the presumption if provided anywhere may not be drawn simply on the basis of lodging an F.I.R. or submission of charge sheet, therefore, the whole judgement of conviction passed by the trial court is nothing but is based on bundle of misconceived facts and motion and the same could not withstand with the test of law.

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It is further submitted that in every criminal trial, accused person is having presumption of innocence and the same could only be disturbed when a case of the prosecution is proved beyond reasonable doubt and when the prosecutrix though she was minor at the date and time of the alleged incident, had not alleged anything against the appellant, it was not permissible for the trial court to have convicted the appellant on the basis of surmises and conjectures. The appellant is in jail in this case since 08.12.2023.

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It is further submitted that the appellant/applicant was on bail during the course of the trial and there is no instance of misusing the liberty granted to him by the court and there is no apprehension that the appellant/applicant after release on bail may flee from the process of law or will not cooperate in early

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disposal of the appeal or in any way will misuse the liberty of bail granted by this Court and he undertakes that he will remain present before this Court and will cooperate in early disposal of the appeal.

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Learned A.G.A. opposes the prayer for bail of the appellant/applicant on the ground that the prosecutrix/victim of this case is a minor girl of 14 years of age, therefore, no illegality has been committed by the trial court in convicting the appellant/applicant and having regard to the evidence available the appellant, he is not entitled to be released on bail, however, he could not confront the factual submissions made by the learned counsel for the appellant/applicant that during the trial the appellant/applicant was on bail.

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Learned counsel appearing for the respondent nos.2 and 3 vehemently opposes the prayer of bail of the appellant on the ground that the prosecutrix has admitted to remain in the company of the appellant for about six hours and since she was minor, the trial court has not committed any illegality in convicting the appellant for substantive offence, wherein the sentencing has also been done.

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Having heard learned counsel for the parties and having perused the record, it is evident that there are certain admitted facts emerging in the instant case. It appears to be an admitted case that the prosecutrix was minor at the date and time of the alleged incident. It is also admitted to the parties and could not be denied that the prosecutrix has returned same day back to her home when the F.I.R. was lodged by her father. It also appears to be an admitted situation that neither in her statement recorded under Section 161 Cr.P.C. nor in her statement recorded under Section 164 Cr.P.C. before the magistrate, victim/prosecutrix has alleged any imputation against the appellant pertaining to her eloping/abduction or commission of sexual assault. Interestingly the prosecutrix in her statement recorded before the trial court also has not alleged any imputation against the appellant and on account of this, she was declared hostile and was permitted to be cross examined by the public prosecutor under Section 154 of the Indian Evidence Act. It also appears to be an admitted fact that the prosecutrix was the sole witness of the alleged crime. The trial court appears to have relied on the evidence given by Dr. Renu Pant, who had examined the prosecutrix on 20.02.2018 and have found her hymen torn recently with some redness surrounding. The defence of the appellant appears to be that since the prosecutrix has not alleged any imputation against the appellant, there was no opportunity or occasion for the trial court to have convicted the appellant in absence of any substantive evidence available

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against the appellant as the prosecutrix had also turned hostile and has not alleged any imputation against the appellant in her statement recorded under Sections 161 and 164 Cr.P.C. It is also the defence of the appellant that only on the basis of medical evidence, conviction of the appellant may not be sustained as under Section 45 of the Indian Evidence Act, medical evidence may act as a corroborative evidence and may never be a substantive evidence unless and until there is any factual evidence in support of the same and since there is no substantive evidence against the appellant, the trial court has committed an illegality in convicting the appellant. The appellant/applicant was on bail during the course of the trial and nothing has been brought to the notice of this Court, which may suggest that the liberty granted to the appellant/applicant has ever been misused by him. The appellant is in jail in this case since 08.12.2023 and he is not having any criminal history.

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Considering the facts and circumstance of the case and keeping in view the nature of offence, evidence, complicity of appellant/applicant, punishment awarded and submissions of learned counsels for the parties and without expressing any opinion on the merits of the case, I am of the considered view that the appellant/applicant has made out a case of bail. The bail application of the appellant is allowed. However, this prima facie view will have no impact on the final decision of the appeal.

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Let the appellant/applicant namely Waseem involved in aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

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(i) The appellant/applicant after being released on bail shall not attempt to contact the prosecutrix/victim either directly or indirectly or through any social media platform and violation of this condition alone shall be a sufficient ground for this Court to cancel the facility of bail granted to the appellant/applicant.

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(ii) 50% of the fine imposed by the trial court shall remain stayed on the condition that 50% of the fine so imposed by the trial Court shall be deposited by the appellant/applicant within 30 days of actual release of the appellant/applicant from prison.

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(iii) The appellant/applicant shall cooperate in the early disposal of appeal without seeking unnecessary adjournment.

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

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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The trial court is directed to transmit the photo copies of personal bond and bond of sureties filed by the appellant/applicant to this Court at the earliest.

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17. Let the appeal be listed for final hearing on 30.05.2024.

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Order Date :- 8.5.2024 Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench

Waseem v. State of U.P Thru. Addl. Chief Secy. Home Lko. and 4 Others

Case brief

What is this about?

What did the court decide?

Waseem v. State of U.P Thru. Addl. Chief Secy. Home Lko. and 4 Others

Case brief

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