Sudhir @ Bhura v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40400 of 2023 Applicant :- Sudhir @ Bhura Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajeev Kumar Saxena Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No.174 of 2023 at Police Station-Achhalda, District-Auraiya under Sections 376, 354, 506 IPC and Section 3/4 of POCSO Act. The applicant is in jail since 31.07.2023. The bail application of the applicant was rejected by the learned trial court on 11.08.2023. The following arguments made by Shri Rajeev Kumar Saxena, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by and Shri Suchit Tandon, 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 16 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 13 years and 6 months are unreliable.

(iii) The victim in her statement under Section 161 Cr.P.C. has stated that she is 16 years of age while in the statement under Section 164 Cr.P.C. she is 13 years of age.

(iv) Medico-legal examination (not the age determination test) records that the victim is about 16 years of age.

(v) The medical report drawn up to determine the age of the victim opines that she is about 17 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.

¶1The applicant has been nominated on account of a village rivalry.

¶2There was no occasion for the applicant to hide behind the toilet in the field and wait for the victim. The medical report contradicts the prosecution case.

¶3The postmortem report contradicts the prosecution case.

¶4No injuries are depicted in the medical report which would have been caused had the victim been dragged as is stated in the prosecution case.

¶5Medical evidence to corroborate commission of rape or forceful assault by the applicant with the victim has not been produced by the prosecution.

¶6Prosecution evidence does not connect the applicant with the offence.

¶7The applicant does not have any criminal history apart from this case.

¶8The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial 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-Sudhir @ Bhura 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 :- 18.10.2023 Dhananjai High Court of Judicature at Allahabad