Rahul Kumar v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47974 of 2023 Applicant :- Rahul Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Zafar Abbas,Sarve Nazir Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Shri Suchit Tandon, 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. 211 of 2023 at Police Station-Thakurdwara, District-Moradabad under Sections 376(3), 366 IPC, Section 3/4 of the POCSO Act and Section 3(2)5 SC/ST Act. The applicant is in jail since

20.06.2023. The bail application of the applicant was rejected by the learned trial court on 26.09.2023. The following arguments made by Shri Zafar Abbas, learned counsel assisted by Sri Rahul Dev Singh, 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). Medical report drawn up to determine the age of the victim opines that she is about 17 years of age. The victim is in fact a major.

¶4The victim and the applicant were intimate.

¶5The F.I.R. is the result of opposition of the victim's family to the said relationship.

¶6The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. has admitted to intimacy with the applicant. She has further asserted that she eloped with the applicant of her own volition. She has also asserted that she got married with the applicant and their marriage has been consummated.

¶7No allegation of commission of rape by the applicant with the victim has been made by the latter in the aforesaid statements.

¶8Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.

¶9The victim was never confined or bound down. She was at public places but never resisted the applicant nor raised an alarm. Her conduct shows that she was a consenting party.

¶10No medical evidence to corroborate the commission of rape has been produced by the prosecution.

¶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 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-Rahul Kumar 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 :- 8.11.2023 Pravin High Court of Judicature at Allahabad