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

This third application for bail has been filed by applicant/appellant, seeking his enlargement on bail in Case Crime No. 183 of 2022, under section 363, 366, 376, 323 IPC and Section 3/4 POCSO Act, Police Station- Nawabad, District- Jhansi, during the pendency of trial i.e. Sessions Trial No. 481 of 2022 (State Vs. Deepak Yadav) under section 363, 366, 376, 323 IPC and Section 3/4 POCSO Act, Police Station- Nawabad, District- Jhansi, now pending in the Court of Additional District Judge (FTC)(OAW), Jhansi.

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The first bail application of the applicant was rejected by this Court vide order dated 15.11.2022, passed in Criminal Misc. Bail Application No. 35633 of 2022 (Deepak Yadav Vs. State of U.P.). Thereafter applicant filed his repeat application for bail which also came to be rejected by this Court by a detailed order dated 9.5.2024, passed in Criminal Misc. Bail Application No. 15961 of 2024 ( Deepak Yadav Vs. State of U.P. and 3 Others). For ready reference, the order dated 9.5.2024 is reproduced herein under:

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"Heard Mr. Rajeev Ratan Shukla, the learned counsel for applicant and the learned A.G.A. for State.

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At the very outset, learned A.G.A. submits that notice of present repeat application for bail has been served upon first informant/opposite party-2 on 07.05.2024. However, inspite of service of notice, no one has put in appearance on behalf of first informant-opposite party-2 to oppose this repeat application for bail.

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BAIL No. 30069 of 2025

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This repeat application for bail has been filed by applicant Deepak Yadav seeking his enlargement on bail in Case Crime No.183 of 2022, under Sections 363, 366, 376, 323 IPC and Section 3/4 Pocso Act, police station Nawabad, district Jhansi, during the pendency of trial i.e. Sessions Trial No.481 of 2022 (State Vs. Deepak Yadav and others), under Sections 363, 366, 376, 323, 504, 506 IPC and Section 3/4 Pocso Act, police station Nawabad, district Jhansi, now pending in the Court of Special Judge (Pocso Act), Jhansi.

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Perused the record.

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The first bail application of applicant was rejected by this Court vide order dated 15.11.2022 passed in Criminal Misc. Bail Application No.35633 of 2022 (Deepak Yadav Vs. State of U.P. and 3 Others). For ready reference, the order dated 15.11.2022 is reproduced herein-below :

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"1. Heard Mr. Harish Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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2. Perused the record.

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3. This application for bail has been filed by applicant, Deepak Yadav seeking his enlargement on bail in Case Crime No.183 of 2022, Under Sections 363, 366, 376, 323 I.P.C. and Section 3/4 Protection of Children From Sexual Offence Act, 2012, Police Station- Nawabad, District- Jhansi, during the

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pendency of trial.

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4. Record shows that in respect of an incident which is alleged to have occurred on 28.4.2022, a delayed F.I.R. dated 1.5.2022 was lodged by the first informant namely, Smt. Kanti(mother of the prosecutrix) and was registered as Case Crime No.0183 of 2022, Under Sections 363, 366, 376, 323 I.P.C. and Section 3/4 Protection of Children From Sexual Offence Act, 2012, Police Station- Nawabad, DistrictJhansi. In the aforesaid F.I.R., four persons namely, Deepak Yadav, Smt. Rajkumari, Bharat Yadav and Smt. Abda Devi have been nominated as named accused.

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5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Deepak eloped away with the daughter of the first informant.

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6. After lodging of afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime in terms of chapter XII Cr.P.C. The statement of the first informant was recorded under Section 161 Cr.P.C. wherein she has supported the prosecution story as unfolded in the F.I.R. The prosecutrix was thereafter recovered on 17.5.2022. The statement of the prosecutrix was thereafter recorded by Investigating Officer under Section 161 Cr.P.C. The prosecutrix in her aforesaid statement stated that named accused Deepak enticed her away and thereafter she accompanied with him and also physical relation was established between them. Thereafter prosecutrix was medically examined. In her statement before the Doctor, prosecutrix has repeated her statement as recorded under section 161 Cr.P.C. and stated that she accompanied the applicant out of her own free will. She further stated that physical relation was established with applicant as per her own free will. The Doctor who examined the prosecutrix did not find any injury on her body so as to denote commission of sexual offence. With regard to private part of the prosecutrix, Doctor has opined as under:"Hymen - Torn, old Healed Hymen"

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7. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same show negative results. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has supported her statement given before the Doctor who medically examined her and her earlier statement recorded under Section 161 Cr.P.C. During the course of investigation, Investigating Officer recovered the mark-sheet of Class - V of the prosecutrix

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wherein her date-of-birth is recorded as 05.03.2009. The occurrence in question occurred on 27.04.2022. As such the prosecutrix was aged about 12 years and 11 months on the date of occurrence. Ultimately, on the basis of the above as well as other material collected by him, Investigating Officer opined to submit the charge-sheet. Accordingly, Investigating Officer submitted the charge-sheet dated 13.06.2022 whereby named accused persons have been charge-sheeted under Sections 363, 366, 376, 323 I.P.C. and Section 3/4 Protection of Children From Sexual Offence Act, 2012.

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8. Learned counsel for the applicant contends that though applicant is a named and charge-sheeted accused but he is innocent. Drawing the attention of the Court to the medical evidence, the learned counsel for applicant submits that medical evidence does not support the prosecution story. As such no offence under Section 376 I.P.C. can be said to have been committed by the applicant.

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9. Reference has also been made to the statement of the prosecutrix recorded under Sections 161/164 Cr.P.C. and the statement given before the Doctor. On the basis of above, the learned counsel for applicant submits that prosecutrix is a consenting party. As such there was no kidnapping by applicant. Resultantly, no offence under Sections 363 & 366 I.P.C. can be said to have been committed by applicant. Applicant is a man of clean antecedent having no criminal history to his credit. Applicant is in jail since 25.05.2022. As such, he has undergone more than 5 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. 10. Per contra, the learned A.G.A. has opposed the application for bail. He submits that the sole ground urged by the counsel for applicant is that applicant and the prosecutrix were in love with each other for last five years and the prosecutrix is a consenting party. He however submits that considering the age of the prosecutrix, the provision contained in Section 6 of the POCSO Act, judgement of Supreme Court in X-Minor Vs. State of Jharkhand, MANU/SCOR/26579/2022, applicant does not deserve any indulgence of this Court.

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11. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of evidence on record, accusations made as well as complicity of applicant and coupled with the fact that prosecutrix is aged about 12 years and 11 months as per her mark-sheet of Class-V, the judgement of the Supreme Court in X-Minor Vs. State of Jharkhand (Supra) and Section 6 of the POCSO Act but without making any comment on the merit of the case, this court does not find any good ground to enlarge the applicant on bail.

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12. Accordingly, this application fails and is liable to be rejected.

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13. It is accordingly, rejected."

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Learned counsel for applicant contends that subsequent to the order dated 15.11.2022, the trial of the applicant commenced before the court below by way of Sessions Trial No.481 of 2022 (State Vs. Deepak Yadav and others), under Sections 363, 366, 376, 323, 504, 506 IPC and Section 3/4 Pocso Act, police station Nawabad, district Jhansi. Up to this stage, only one prosecution witness i.e. prosecutrix has deposed before court below as PW-1.

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Attention of the Court was then invited to the statement of the prosecutrix, copy of which is on record as Annexure-'6' to the affidavit filed in support of this repeat application for bail, and on basis thereof he contends that prosecutrix in her deposition before court below has not fully supported the first information report. He, therefore, contends that since the prosecutrix, prima facie, is a consenting party, the applicant is liable to be enlarged on bail. On the above premise, it is then urged by the learned counsel for applicant that since prosecutrix has herself not fully supported the first information report in her deposition before court below therefore, no good ground exists to prolong the custodial

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BAIL No. 30069 of 2025

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arrest of applicant. It is then contended that since the statement of the prosecutrix has been recorded therefore in case applicant is enlarged on bail then in that eventuality it cannot be said that if applicant is enlarged on bail he shall either terrorize the witnesses or shall hamper the course of trial. On the above premise, it is thus urged that applicant is entitled to be enlarged on bail.

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Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in custody since 25.05.2022. As such, he has undergone approximately two years of incarceration. The police report under Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant. He, therefore, contends 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. Per contra, the learned A.G.A. has opposed the prayer for bail. Learned A.G.A. submits that since applicant is a named and charge-sheeted accused therefore he does not deserve any indulgence by this Court. Attention of the Court was invited to paragraph 7 of the order dated 15.11.2022 passed by this Court and on basis thereof he contends that the prosecutrix is a young girl and was aged about twelve years and eleven months on the date of occurrence. Considering the nature and gravity of offence and the age of the prosecutrix, the applicant does not deserve any indulgence by this Court. It is further contended by the learned A.G.A. that the period of incarceration undergone by the applicant or the lackadaisical approach on the part of prosecution in pursuing the trial cannot be treated as sufficient grounds to enlarge the applicant on bail. As such, the present repeat application for bail is liable to be rejected by this Court.

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When confronted with above, the learned counsel for applicant could not overcome the same.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that the objections raised by the learned A.G.A. in opposition to the present repeat application for bail could not be dislodged by the learned counsel for applicant therefore irrespective of the submissions urged by the learned counsel for applicant but, without making any comments on the merits of the case, this Court does not find any new, good or sufficient ground to enlarge the applicant on bail.

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As a result, this repeat application for bail fails and is liable to be rejected. It is accordingly rejected. "

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Learned counsel for applicant/appellant submits that applicant/appellant is named as well as charge sheeted accused and facing trial before Court below. However, in view of the facts as have now been crystalized on record, applicant is liable to be enlarged on bail during the pendency of trial. In furtherance of aforesaid submission, it is contended by the learned counsel for applicant that applicant is in jail since 20.5.2022. As such, applicant has undergone more than three years and four months of incarceration. All the prosecution witnesses of fact have deposed before Court below. Therefore, in case applicant is enlarged on bail then in that

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eventuality it cannot be said that applicant shall either hamper the course of trial or he shall terrorize the witness. Apart from above, the prosecutrix in her deposition before Court below who has deposed as P.W.1 has clearly and categorically stated that she accompanied the accused out of her own sweet will. In view of aforesaid willingness, on the part of the prosecutrix, coupled with the fact that prosecutrix remained with the applicant, as such, applicant is liable to be enlarged on bail during the pendency of trial.

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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. The Chargesheet/police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during pendency of trial. To buttress his submission he has relied upon judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373, It is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail during the pendency of trial. In case the applicant is enlarged on bail, then in that eventuality he shall not misuse the liberty of bail and shall cooperate with the trial.

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Per contra, the learned A.G.A. for State has opposed the present third application for bail. He submits that since applicant is a named as well as charge sheeted accused, and under incarceration, therefore, he does not deserve any indulgence by this Court. Prosecutrix is a willing and consenting party. Prosecutrix was a young and innocent girl aged about 13 years on the date of occurrence. Consequently, the criminality committed by applicant is not private in nature but a crime against society. In fact it is not only illegal but also immoral. Learned A.G.A. has then referred to the statement of the prosecutrix wherein the prosecutrix has clearly and categorically stated that she did not accompany the applicant. The prosecutrix is below 18 years of age, as such, she is a child within the meaning of term child, as defined in Section 2 (d) of the POCSO Act. Since the prosecutrix is a child, therefore, no indulgence be granted by this Court in favour of applicant. Learned A.G.A. thus contends that as no new good or sufficient ground has emerged so as to enlarge the applicant on bail, therefore this application for bail is liable to be rejected.

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When confronted with above, the learned counsel for applicant could not overcome the same.

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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 offence accusation made as well as complicity of applicant, coupled with the fact that objections raised by the learned A.G.A. in opposition to the present third application for bail are clearly borne out from the record. furthermore the same could not be dislodged by the learned counsel for applicant with reference to the record. Therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of the present third application for bail, but without making any comment on the merits of the case, this Court does not find any new good or sufficient ground so as to enlarge the applicant on bail.

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In view of above, the present third application for bail fails and is liable to be rejected.

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It is accordingly rejected.

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September 25, 2025 Arshad

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(Rajeev Misra,J.)

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

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

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

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