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

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45088 of 2023 Applicant :- Akshay Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Amarjeet Yadav,Vibha Yadav 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.206 of 2023 at Police Station-Kopaganj, District-Mau under Sections 363, 366, 376(3) IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 09.08.2023. The bail application of the applicant was rejected by the learned trial court on 26.09.2023. The following arguments made by Shri Amarjeet Yadav, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by 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.

¶2The victim was wrongly shown as a minor in the F.I.R. as 17 years 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 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, 7 days are unreliable.

(iii) The victim in her statements under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has asserted that she is 17 years of age.

(iv) No medical examination to determine the correct age of the victim as per the latest scientific criteria and medical protocol by eminent doctors from a reputed institution was got done by the prosecution as it would falsify the prosecution case. The victim is in fact a major.

¶4The applicant and the victim were intimate.

¶5FIR is a result of the opposition of the parents of the victim to the said relationship.

¶6The victim in her statement under Section 161 Cr.P.C. has admitted to intimacy with the applicant. She further asserted that she eloped with the applicant and established consensual physical relations with him. The two had stayed together in a rented accommodation in Delhi.

¶7False and aggravated allegations have been made by the victim subsequently in her statement under Section 164 Cr.P.C. at the behest of her parents only to deflect attention from the conduct of the victim and to save the failing prosecution case.

¶8The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.

¶9No allegation of abduction, inappropriate behaviour or commission or rape by the applicant with the victim has been made by her in the statement under Section 161 Cr.P.C.

¶10The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.

¶11Major inconsistencies in the FIR, the statements under Section 161 and 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.

¶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. Learned A.G.A contends that no instructions have been forthcoming. Liberty of citizens is too sacrosanct and cannot be held to ransom by apathy of the police officials. There is no cause for failing to provide instructions to the learned Government Advocate despite advance notice of the bail application. The Superintendent of Police, Mau shall take appropriate action against the erring police officials for failing to send appropriate instructions to the learned Additional Government Advocate despite advance notice of bail application and violating the directions of this Court in Sahil Vs. State of U.P. (Criminal Misc. Bail Application No. 19839 of 2021) as well as in Aditya Dubey alias Sachin Vs. State of U.P. (Criminal Misc. Bail Application No. 17969 of 2022) and the consequential orders passed by the Director General of Police, Government of U.P, Lucknow. 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-Akshay 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 :- 27.10.2023 Ashish Tripathi High Court of Judicature at Allahabad