Apsar Ahmad v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47838 of 2023 Applicant :- Apsar Ahmad Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Santosh Kumar Yadav Counsel for Opposite Party :- G.A.,Gunjan Sharma Hon'ble Ajay Bhanot,J. Shri Paritosh Kumar Malviya, learned AGA-I 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. 200 of 2023 at Police Station-Saraimamrej, District-Prayagraj under Sections 376 (2)(n), 313 IPC and Section 5/6 of the POCSO Act. The applicant is in jail since

28.07.2023. The bail application of the applicant was rejected by the learned trial court on 16.10.2023. The following arguments made by Shri Santosh Kumar Yadav, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Gunjan Sharma, learned counsel on behalf of the victim as part of the free legal aid granted by the High Court Legal Services Committee upon the recommendation of the Child Welfare Committee and 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 17 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 17 years are unreliable.

(iii) The victim under in her statements under Sections 161 and 164 Cr.P.C. has stated that she is 17 years of age respectively.

(iv) Medico-legal examination (not the age determination test) records that the victim is 17 years of age. 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.

¶4Delay in lodgement of the F.I.R. in the facts and circumstances of this case is fatal to the prosecution case.

¶5The victim and the applicant were intimate.

¶6The victim eloped with the applicant to Mumbai and resided with him over there.

¶7The victim had a consensual physical relationship with the applicant and became an expectant mother as a result of the aforesaid union.

¶8The F.I.R. was got lodged by the victim only to deflect attention from her own conduct.

¶9The victim was never confined or bound down in any manner. The victim was present at various public places but never raised an alarm nor did she resist the applicant. The conduct of the victim shows that she was a consenting party.

¶10Major 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.

¶11Medical evidence to corroborate commission of rape by the applicant with the victim has not been produced by the prosecution.

¶12The applicant does not have any criminal history apart from this case.

¶13The 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-Apsar Ahmad 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 Jaswant High Court of Judicature at Allahabad