Ankit Kumar Jaiswal v. State of U.P. and 3 Others

Order Date :- 1.11.2023 "

¶12According to the learned counsel for applicant, the applicant is simply a Tempo Driver of the vehicle in which the prosecutrix was traveling. As per recital contained in the F.I.R. as well as the statements of the prosecutrix referred to above, applicant cannot be said to be the guilty of dislodging the modesty of the prosecutrix. He therefore submits that case of present applicant is clearly distinguishable from named and charge sheeted co-accused Ajeet Kumar Jaiswal and Khurshid Ansari, He therefore contends that applicant is liable to be enlarged on bail.

¶13Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 04.09.2023. As such, he has undergone more than two and a half months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, the learned counsel for applicant thus submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial..

¶14Per contra, the learned A.G.A. has opposed the prayer for bail. He contends that since the applicant is a named as well as charge-sheeted accused therefore he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶15Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that though the applicant is a named and charge sheeted accused yet the Court finds that neither in the F.I.R. any allegation for dislodging the modesty of the prosecutrix has been made against applicant nor the prosecutrix in her statements under Section 161/164 Cr.P.C. has implicated the applicant for dislodging her modesty, the case of present applicant is clearly distinguishable from other named and charge sheeted co-accused namley Ajeet Kumar Jaiswal and Khurshid Ansari, the period of incarceration undergone, the clean antecedents of applicant, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicants stands crystallised, yet in spite of above the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

¶16Accordingly, present application for bail is allowed.

¶17Let the applicant-Ankit Kumar Jaiswal involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

¶18The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison

¶19It is however made clear that named/charge sheeted co-accused Khurshid Ansari shall not claim parity from the order dated

01.11.2023 as well as this order. Order Date :- 22.11.2023 YK High Court of Judicature at Allahabad

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44861 of 2023 Applicant :- Ankit Kumar Jaiswal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Krishna Mani Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. K. M. Gupta, the learned counsel for applicant and the learned A.G.A. for State 2. Perused the record. 3. Instant bail application has been filed by applicant-Ankit Kumar Jaiswal seeking his enlargement on bail in Case Crime No. 94 of 2023 under Sections 363, 376D, 506 I.P.C. and 5g/6 POCSO Act, Police Station-Windhamganj, District-Sonbhadra, during the pendency of trial. 4. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-2 on 15.10.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose this application. 5. Record shows that in respect of an incident, which is alleged to have occurred on 01.09.2023, a delayed F.I.R. dated 03.09.2023 was lodged by first informant Lalman Vishwakarma (father of the prosecutrix) and was registered as Case Crime No. 94 of 2023 under Sections 363, 376DA, 506 I.P.C. and 5g/6 POCSO Act, Police Station-Windhamganj, District-Sonbhadra. In the aforesaid F. I.R., three persons namely Khurshid Ansari, Ajeet Kumar Jaiswal and Ankit Kumar Jaiswal (applicant herein) have been nominated as named accused. 6. The gravamen of the allegations made in the F.I.R is to the effect that while the prosecutrix was traveling in a Tempo driven by named/charged sheeted accused Ankit Kumar Jaiswal (applicant herein) and two other named accused i.e. Khurshid Ansari and Ajeet Kumar Jaiswal came on a motorcycle and thereafter kidnapped the prosecutrix. The F.I.R. further records that one of the named accused Khurshid Ansari dislodged the modesty of the prosecutrix forcibly by committing rape upon her whereas another accused Ajeet Kumar Jaiswal made a video of the obscene seen as noted above. 7.After aforementioned F.I.R. was lodged, the Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter statement of the prosecutrix was recorded under Section 161 Cr.P.C., which is on record at page 29 of the paper book. The prosecutrix in her aforesaid statement has fully supported the F.I.R.. Thereafter, the prosecutrix was was requested for her internal medical examination. The prosecutrix in her statement before the Doctor, who medically examined her, has rejoined her previous statement udder Section 161 Cr.P.C. . The Doctor, who medically examined the prosecutrix, however, did not find any such injury on her body so as to denote commission of deliberate or forceful sexual assault.However, with regard to the private part of the prosecutrix, the Doctor has opined as under: "Hymen - Hymen ruptured old healed and old torn." 8. Ultimately, statement of the prosecutrix was recorded under Section 164 Cr.P.C., which is on record at page 43 of the paper book. In her aforesaid statement the prosecutrix has reiterated her earlier statement recorded under Section 161 Cr.P.C. 9. During course of investigation, Investigating Officer recovered the date of birth of the prosecutrix recorded in the institution where she was studying in Class 10th. As per the certificate so issued, the date of birth of the prosecutrix as recorded in the School records is 18.03.2006. The occurrence giving rise to present criminal proceedings occurred on 01.09.2023. As such, on the date of incident, the prosecutrix was aged about 17 years, 5 months and 14 days . 10. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the