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

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45931 of 2023 Applicant :- Bablu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Niklank Kumar Jain Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Shri Paritosh Kumar Malviya, learned AGA-I 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 notices of the bail application upon the the victim as well as the CWC. By means of the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 100 of 2023 at Police Station-Baghwala, District-Etah under Sections 376, 504, 506 I.P.C. and Section 5/6 J(2) of the POCSO Act. The applicant is in jail since 29.04.2023. The bail application of the applicant was rejected by the learned trial court on 18.09.2023. The following arguments made by Shri Niklank Kumar Jain, 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 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 14 years are unreliable.

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

(iv) The medical report drawn up to determine the age of the victim opines that she is almost 14 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 criteria as per latest medical protocol which would establish the majority of the victim has been excluded from consideration in the medical report. For example, size of the teeth, heredity, socioeconomic environment and dietary habits have not been factored in the said medical reports. These have a bearing on the human growth and determination of age. The medical report is flawed. In fact the victim is a major.

¶4The delay in lodgment of the FIR in the facts and circumstances of the case is fatal to the prosecution case.

¶5The victim had a love interest (other than the applicant) with whom she had a physical relationship. The victim became an expectant mother of the aforesaid union.

¶6The FIR was got registered only to deflect attention from the conduct of the victim, and the applicant is a convenient scapegoat.

¶7Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

¶8This is a case of teenage romance. [See: Criminal Misc. Bail Application No.53947 of 2021 (Atul Mishra v. State of U.P. and 3 others, reported at 2022 SCC OnLine All 420]

¶9Major inconsistencies in the F.I.R., statements under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.

¶10The applicant does not have any criminal history apart from this case.

¶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-Bablu 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 :- 7.11.2023/Pravin High Court of Judicature at Allahabad