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

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47654 of 2023 Applicant :- Fardeen Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Umair Mahmood Counsel for Opposite Party :- G.A. 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.490 of 2023 at Police Station-Seohara, District-Bijnor under Sections 363, 376 IPC and Section 3/4 of the POCSO Act. The applicant is in jail since 08.09.2023. The bail application of the applicant was rejected by the learned trial court on 26.10.2023. The following arguments made by Shri Umair Mahmood, 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 in the F.I.R. as 15 years 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 raises the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) The victim in her statements under Section 161 Cr.P.C. and under Section 164 Cr.P.C. has asserted that she is 19 years of age.

(iii) The medical report drawn up to determine the age of the victim opines that she is 17 years of age. The victim is in fact a major. 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 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 Section 161 Cr.P.C. and under Section 164 Cr.P.C. has admitted to intimacy with the applicant. She has also asserted that the victim accompanied the applicant to Chanchalpur of her own volition. The victim in her statement under Section 164 Cr.P.C. has further admitted to consensual physical relations with the applicant.

¶7No allegation of commission of rape has been made by the victim against the applicant in her statements under Section 161 Cr.P.C. and under Section 164 Cr.P.C.

¶8The 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.

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

¶10Medical evidence to corroborate commission of rape by the applicant with the victim has not 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-Fardeen 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 Ashish Tripathi High Court of Judicature at Allahabad High Court of Judicature at Allahabad