Lala @ Yashpal v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43209 of 2023 Applicant :- Lala @ Yashpal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kamlesh Kumar Dwivedi,Saurabh Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Shri Rishi Chaddha, learned AGA 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 bail application the applicant has prayed to be enlarged on bail in Case Crime No. 20 of 2023 at Police Station-Kagarol, District-Agra under Section 376D IPC and Section 5G/6 POCSO Act. The applicant is in jail since 02.03.2023. The bail application of the applicant was rejected by the learned trial court on 18.09.2023. The following arguments made by Shri Saurabh Dwivedi, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Rishi Chaddha, 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 in the school record. The school records disclosing her age as 15 years are unreliable.

(iii) The victim under in her statements under Sections 161 and 164 Cr.P.C. has stated that she is 12-13 years and 14 years of age respectively.

(iv) Medico-legal examination (not the age determination test) records that the victim is 14 years of age.

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

¶4The applicant and the victim were intimate.

¶5The F.I.R. has been lodged at the behest of the parents of the victim only to deflect attention from the victim and cause a breach in their relationship.

¶6False and aggravated allegations were made by the victim in a tutored statement under Section 161 Cr.P.C. only to save the failing prosecution case.

¶7No allegation of commission of rape has been made by the victim in her statement under Section 164 Cr.P.C.

¶8Major 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.

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

¶10The victim has refuted the prosecution case in her testimony before the trial court.

¶11The applicant does not have any criminal history apart from this case.

¶12The 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-Lala @ Yashpal 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 :- 6.11.2023 Jaswant High Court of Judicature at Allahabad