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

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38249 of 2023 Applicant :- Shakil Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Birendra Kumar Mishra,Byas Kumar Prasad Counsel for Opposite Party :- G.A.,Onkar Nath Hon'ble Ajay Bhanot,J. Chairman, Child Welfare Committee, Agra, is present. Report of the CWC has been drawn up and has been presented in Court. Personal appearance of Chairman, Child Welfare Committee, Agra, is exempted. Shri Paritosh Kumar Malviya, learned AGA-I 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. 634 of 2022 at Police Station-Shahganj, District-Agra under Sections 376, 506, 120B I.P.C. and Section 5N/6 and 16/17 of POCSO Act. The applicant is in jail since

24.12.2022. The bail application of the applicant was rejected by the learned trial court on 21.03.2023. The following arguments made by Shri Byas Kumar Prasad, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Onkar Nath, learned counsel for the informant 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.

¶2The victim was wrongly shown as a minor of 13 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 victim in her statement under Sections 161 Cr.P.C. has stated that she is 13 years of age.

(iii). The medical report drawn up to determine the age of the victim opines that she is 16 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.

¶4Delay in lodgement in the F.I.R. in the facts and circumstances of this case is fatal to the prosecution case.

¶6The applicant is the father of the victim.

¶6The relationship of the applicant with his wife is estranged.

¶7Wife of the applicant has polluted the mind of her minor children against her husband.

¶8The statements of the victim are tutored and made at the behest of her mother to falsely implicate the applicant.

¶9Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

¶10Prosecution evidence does not connect the applicant with the offence.

¶11The 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-Shakil 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 :- 30.10.2023 Dhananjai High Court of Judicature at Allahabad