Ajay Kumar v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20555 of 2023 Applicant :- Ajay Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Atharva Dixit,Aushim Luthra Counsel for Opposite Party :- G.A.,Seema Pandey Hon'ble Ajay Bhanot,J. Shri Paritosh Kumar Malviya, learned AGA-I 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.512 of 2022 at Police Station-Khutar, District-Shahjahanpur under Sections 363, 366, 376 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 26.11.2022. The bail application of the applicant was rejected by the learned trial court on 10.02.2023. The following arguments made by Shri Atharva Dixit, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Seema Pandey, learned counsel appears on behalf of the victim on instructions from the High Court Legal Services Committee as part of free legal aid provided to the victim on the recommendation of CWC and Shri Paritosh Kumar Malviya, learned AGA-I 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.

¶2Learned 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 raises 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 basis of the said entry in the school records. The school records disclosing her age as 17 years 2 months are unreliable.

(iii) The victim in her statement under Section 161 Cr.P.C. has asserted that she is 18 years of age.

(iv). The medical report drawn up to determine the age of the victim opines that she is 19 years of age. The victim in fact a major.

¶3The applicant was not named in the F.I.R.

¶4The victim and the applicant were intimate.

¶5The F.I.R. is the result of parental opposition of the victim's family to her relationship with the applicant.

¶6The prosecution case in the F.I.R. which was got recorded by the victim's mother is that the victim had left her house in the evening and was not traceable.

¶7The victim in her statement under Section 161 Cr.P.C. has asserted that she had left the house because of constant domestic quarrels and she was repeatedly upbraided and beaten by her family members.

¶8No allegation of commission of rape has been made by the victim in her statement under Section 161 Cr.P.C.

¶9Subsequently at a belated stage the victim in her statement under Section 164 Cr.P.C. has made false and aggravated allegations at the behest of her parents to deflect attention from her conduct and to save the failing prosecution case.

¶10The victim travelled to various public places. She was not bound down or confined. However, she did not raise an alarm nor did she resist the applicant. Her conduct shows that she was a consenting party.

¶11Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.

¶12Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

¶13The applicant does not have any criminal history apart from this case.

¶14The 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-Ajay Kumar 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 :- 17.10.2023 Ashish Tripathi High Court of Judicature at Allahabad High Court of Judicature at Allahabad