Vinay Singh @ Vinay Thakur v. State of U.P. and 3 Others

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40996 of 2023 Applicant :- Vinay Singh @ Vinay Thakur Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mohd. Samiuzzaman Khan,Tanveer Zafar Khan Counsel for Opposite Party :- G.A.,Abhilasha Singh,Sanjay Srivastava Hon'ble Rajeev Misra,J.

¶1Heard Mr. Mohd. Samiuzzaman Khan, the learned counsel for applicant, the learned A.G.A. for State, Mr. Sanjay Srivastava, the learned counsel representing first informant-opposite party 2 and Mrs. Abhilasha Singh, the learned counsel representing opposite party 4-High Court Legal Services Committee, High Court, Allahabad.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Vinay Singh @ Vinay Thakur seeking his enlargement on bail in Case Crime No. 62 of 2023, under Sections 328, 376, 323, 324, 384, 504, 506, 406, 354, 120-B IPC and Sections 5(1)/6 POCSO Act, Police Station-Barra, District-Kanpur Nagar during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 03.03.2023, a delayed FIR dated 04.03.2023 was lodged by first informant-Dr. Avnish Dwivedi (father of the prosecutrix) and was registered as Case Crime No. 62 of 2023, under Sections 147, 328, 376, 323, 324, 506 IPC and Sections 3/4 POCSO Act, Police Station-Barra, District-Kanpur Nagar. In the aforesaid FIR, 3 persons namely - (1) Vinay Thakur (applicant herein), (2) Ajay and (3) Aman Sengar have been nominated as named accused whereas 4-5 unknown persons have also been arraigned as accused.

¶5The gravamen of the allegations made in the FIR is to the effect that named accused-Vinay Singh @ Vinay Thakur (applicant herein) deliberately dislodged the modesty of the prosecutrix. The other named accused and unknown persons are also alleged to have attempted to dislodge the modesty of the prosecutrix.

¶6After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 38 onwards. The prosecutrix in her aforesaid statement has not only supported the FIR but has also detailed the entire manner of occurrence. Thereafter. the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor, who medically examined her, has rejoined her previous statement under Section 161 Cr.P.C. The Doctor, who medically examined the prosecutrix, found certain injuries on her person so as to denote commission of deliberate and forceful sexual assault. The same is evident from the recital contained at pages 70 and 71 of the paper book, which reads as under:- "1. Bite mark on neck on left side 8 teeth mark and reddish brown scabbing circular mark of 2.5 x 2.5 cm 5 teeth mark.

¶2A mucosal injury on inner lower lip right side due to punching inside about 1 x 1 cm reddish ........ molour.

¶3A induration swelling of about 4 x 3 cm present in scalp region, reddish in color, right side.

¶4Bite mark (abraisional wound) 2 x 1 cm on right cheek about 2 cm from the angle of mouth reddish, brown scab.

¶5An abrasion of 2 x 2 cm on left knee and the clothing (geans) above it was torn reddish brownish scab on it.

6.

ममरमHairs Pull

ककयमथम(Those hair are also sealed).

¶7Reddening of oral mucosa below the tongue on right side."

¶7With regard to the private parts of the prosecutrix, the Doctor has opined as follows:- "Hymen - Ruptured fresh redness present."

¶8Certain samples were taken from the body of the prosecutrix for pathological examination. The clothes of the prosecutrix and the applicant, which were worn by them at the time of occurrence were also recovered. After the vengine test was conducted, blood was found on the same. Male spermatozoa was also found on the clothes of the prosecutrix.

¶9Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C., wherein the prosecutrix has reiterated her earlier statement under Section 161 Cr.P.C. During course of investigation, Investigating Officer recovered the High School mark sheet of the prosecutrix wherein her date of birth has been recorded as 16.04.2006. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 03.03.2023. As such, the prosecutrix was aged about 16 years and 10 months on the date of occurrence. Investigating Officer further examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantially supported the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant and Ajay Thakur @ Ajay Singh, Aman Sengar and Sobhit Pal is established in the crime in question, who have been charge sheeted under the following Sections:-

(i). Applicant-Vinay Singh @ Vinay Thakur has been charge sheeted under Sections 328, 376, 323, 324, 506, 406, 384, 504 IPC and Sections 5I/6 POCSO Act, Police Station-Barra, District-Kanpur Nagar.

(ii). Accused-Ajay Thakur @ Ajay Singh has been charge sheeted under Sections 328, 376, 323, 324, 506, 406, 120-B, 354 IPC and Sections 3/4/17 POCSO Act, Police Station-Barra, District-Kanpur Nagar.

(iii). Accused-Sobhit Pal has been charge sheeted under Sections 4/17 POCSO Act, Police Station-Barra, District-Kanpur Nagar.

(iv). Accused-Ajay Thakur @ Ajay Singh has been charge sheeted under Sections 328, 376, 323, 324, 506, 406, 120-B, 354 IPC and Sections 3/4/17 POCSO Act, Police Station-Barra, District-Kanpur Nagar.

¶10Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. With reference to the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C., he submits that the prosecutrix is a willing and consenting party. In view of above, no offence as alleged can be said to have been committed by the applicant. He, therefore, submits that applicant is liable to be enlarged on bail.

¶11Though applicant has criminal history of certain cases pending again him, the same has been duly explained in paragraph 32 of the affidavit filed in support of the present application for bail. Applicant is in jail since 06.03.2023. As such, he has undergone more than 7 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶12Per contra, the learned A.G.A. for State, Mr. Sanjay Srivastava, the learned counsel representing first informant-opposite party 2 and Mrs. Abhilasha Singh, the learned counsel representing opposite party 4 have vehemently opposed the prayer for bail. They submit that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix is a young girl aged about 16 years and 10 months whose modesty has been deliberately dislodged. The ocular version of the occurrence as explained in the statements of the prosecutrix recorded under Sections 161/164 Cr.P.C. clearly supports the FIR. The prosecutrix in her aforesaid statement has remained clear, categorical and consistent not only with regard to the occurrence but also the manner of the occurrence. The medical evidence also supports the ocular version of the occurrence. As such, there is nothing on record to infer the innocence of the applicant. Since the prosecutrix is below 18 years of age, therefore, her consent, if any, is wholly immaterial. On the above conspectus, it is thus urged that no sympathy be shown by this Court in faovour of applicant.

¶13When confronted with above, the learned counsel for applicant could not overcome the same.

¶14Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant-opposite party 2, Mrs. Abhilasha Singh, the learned counsel representing opposite party 4, upon perusal of record, evidence, complicity of accused, accusations made coupled with the fact that the prosecutrix in her statements under Sections 161/164 Cr.P.C. has clearly supported the FIR, the prosecutrix in her above noted statements has remained clear, categorical and consistent, the ocular version of the occurrence is clearly supported by the medical evidence on record, the prosecutrix being a child within the meaning of the POCSO Act, as she was below 18 years of age on the date of occurrence (16 years and 10 months), therefore, her alleged consent, if any, is wholly immaterial, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.

¶15As a result, present application for bail fails and is liable to be rejected.

¶16It is accordingly rejected. Order Date :- 30.10.2023 Vinay High Court of Judicature at Allahabad