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

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45808 of 2023 Applicant :- Chandrapal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Nirbhay Kumar 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. 223 of 2023 at Police Station-Kotwali, District-Pilibhit under Sections 376 (3), 342, 506 IPC, Section 3/4 POCSO Act, 2012 and Section 3 (2) (V) of the SC/ST Act. The applicant is in jail since 10.07.2023. The bail application of the applicant was rejected by the learned trial court on 10.08.2023. The following arguments made by Shri Ravi Prakash Srivastava holding brief of Shri Nirbhay Kumar, 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 15 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, 10 months and 26 days are unreliable.

(iii) The victim under in her statements under Section 161 and 164 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 above 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 delay in lodgment of the FIR in the facts and circumstances of the case is fatal to the prosecution case.

¶5The FIR is the result of a petty neighbourhood dispute.

¶6The victim claims that she was forcibly abducted from her house by the applicant when his mother and sister were present in the house. The victim failed to raise an alarm. The family members who were present in the house at the time of the incident were not alerted and did not prevent the applicant from abducting the victim.

¶7There is no sign of forced entry in the house.

¶8Bite mark cannot be related to the incident as no reference was made to it in the statement of the victim under Section 161 Cr.P.C.

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

¶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-Chandrapal 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 Jaswant High Court of Judicature at Allahabad