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

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43772 of 2023 Applicant :- Nawajish Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Prakash Tripathi,Vinay Prakash Shukla Counsel for Opposite Party :- G.A.,Akash Tyagi,Neha Tyagi Hon'ble Ajay Bhanot,J. Shri Suchit Tandon, learned AGA 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.299 of 2023 at Police Station-Noorpur, District-Bijnor under Sections 363, 376D(A) I.P.C. and Section 3/4(2) of POCSO Act. The applicant is in jail since 06.08.2023. The bail application of the applicant was rejected by the learned trial court on 19.09.2023. The following arguments made by Shri Manoj Pandey, learned counsel holding brief of Shri Prakash Tripathi, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by 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 14 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 14 years and 10 days are unreliable.

(iii) The victim in her statement under Section 161 Cr.P.C. has stated that she is 15 years of age.

(iv) Medico-legal examination (not the age determination test) records that the victim is about 15 years of age.

(v) 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 establish the majority of the victim and falsify the prosecution case. The victim is in fact a major.

¶4The victim and the principal offender Sahil had developed a fondness for each other over long years.

¶5The said Sahil worked at the shop of the victim's father. The applicant has been implicated as he is a friend of the principal offender Sahil.

¶6No allegation of commission of rape by the applicant with the victim has been made by the latter in her statement under Section 161 Cr.P.C. or in the F.I.R.

¶7Subsequently, false and aggravated allegations have been made belatedly by the victim in her statement under Section 164 Cr.P.C. against the applicant at the behest of her family members only to save the failing prosecution case.

¶8The F.I.R. has been lodged to deflect attention from the conduct of the victim.

¶9Even as per the prosecution case, the victim was not abducted by the applicant. She rode pillion on the motorcycle being driven by other accused person.

¶10The victim was never confined or bound down in any manner. She did not resist the applicant or did she raise an alarm when the applicant drove the motorcycle.

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

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

¶13Prosecution evidence does not connect the applicant with the offence.

¶14The applicant does not have any criminal history apart from the instant case.

¶15The case of the applicant is distinguishable from the principal offenders Shoiyab and Sahil who had forcibly abducted the victim as per the prosecution case.

¶16The 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-Nawajish 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 :- 1.11.2023 Dhananjai High Court of Judicature at Allahabad