Arif v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40434 of 2023 Applicant :- Arif Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohd. Shahibe Alam Counsel for Opposite Party :- G.A.,Babita Upadhyay Hon'ble Ajay Bhanot,J. Personal affidavit filed on behalf of the Superintendent of Police, Baghpat, is taken in the record. Shri Chandan Agrawal, learned AGA for the State contends that the police authorities in compliance of the directions issued by this Court in Criminal Misc. Bail Application No. 46998 of 2020 (Junaid Vs State of U.P. and another) reported at 2021 (6) ADJ 511 and with a view to implement the provisions of POCSO Act, 2012 read with POCSO Rules, 2020, have served the bail application upon the victim/legal guardian as well as upon the CWC. By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No.96 of 2023 at Police Station-Balaini, District-Baghpat under Sections 376, 506 I.P.C. and Section 4(2) of POCSO Act. The applicant is in jail since 25.06.2023. The bail application of the applicant was rejected by the learned trial court on 25.08.2023. The following arguments made by Shri Mohd. Shahibe Alam, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Babita Upadhyay, learned counsel on behalf of the victim as part of the free legal aid granted by the High Court Legal Services Committee upon recommendation of the Child Welfare Committee and Shri Chandan Agrawal, learned AGA from the record, entitle the applicant for grant of bail:

¶1Learned counsel for the applicant contests the minority of the victim as depicted in the prosecution case.

¶2The victim was wrongly shown as a minor of 14 years in the F.I.R. only to falsely implicate the applicant under the stringent provisions of the POCSO Act and cause his imprisonment.

¶3Learned counsel for the applicant contests the age of the victim set out in the prosecution case in light of the judgement of this Court in Monish Vs. State of U.P. and others (Criminal Misc. Bail Application No. 55026 of 2021) and on the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school records disclosing her age as 12 years are unreliable.

(iii) The victim in her statement under Section 161 Cr.P.C. has stated that she is 14 years of age while in the statement under Section 164 Cr.P.C., she stated that she is 12 years of age.

(v) Medico-legal examination (not the age determination test) records that the victim is about 14 years of age.

(vi). The medical report drawn up to determine the age of the victim opines that she is about 14-15 years of age. Two submissions are made in regard to the aforesaid medical report. Firstly, the range of error in determining the age is about two years and the same should be read in favour of the applicant at this stage. Secondly, the relevant scientific parameters as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. The medical report is flawed. In fact the victim is a major.

¶4The applicant has been nominated on account of a village rivalry.

¶5The victim had disappeared from her house but no one in her family raised an alarm.

¶6The medical report does not corroborate rape or the fact that the victim was forcefully dragged to the fields by the applicant.

¶7The chance witness who claims to have seen the two has been set up only to save the failing prosecution case.

¶8Prosecution evidence does not connect the applicant with the offence.

¶9The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending. In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant-Arif 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 below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. Order Date :- 16.10.2023 Dhananjai High Court of Judicature at Allahabad