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

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44357 of 2023 Applicant :- Anil Kumar Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Rajnish Sahai Saxena,Ram Bahadur Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Anil Srivastava, the learned Senior Counsel assisted by Mr. Rajnish Sahai Saxena, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Anil Kumar seeking his enlargement on bail in Case Crime No. 171 of 2023, under Sections 376-D, 365 IPC and Sections 5/6 POCSO Act, Police Station-Khalilabad, District-Sant Kabir Nagar during the pendency of trial.

¶4At the very outset, the learned A.G.A. submits that notice of present application for bail has already been served upon first informant-opposite party 2 on 14.10.2023. 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 for bail.

¶5Record shows that in respect of an incident, which is alleged to have occurred on 21.02.2023, a delayed FIR dated 22.02.2023 was lodged by first informant-Arvind Kumar (father of the prosecutrix) and was registered as Case Crime No. 171 of 2023, under Sections 376-D, 365 IPC, Sections 3(2)(V) & 3(2)(va) SC/ST Act and Sections 5/6 POCSO Act, Police Station-Khalilabad, District-Sant Kabir Nagar. In the aforesaid FIR, 2 persons namely (1) Anil Kumar (applicant herein) and Monu have been nominated as named accused.

¶6The gravamen of the allegations made in the FIR is to the effect that named accused abducted the minor daughter of the first informant i.e. the prosecutrix namely - X aged about 13 years from her home and thereafter, deliberately dislodged her modesty.

¶7After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C. Same is on record at page 33 of the paper book. The prosecutrix in her aforesaid statement has not only fully supported the FIR but also detailed the manner of occurrence. Subsequent to above, the prosecutrix was requested for her internal medical examination. The Doctor, who medically examined the prosecutrix, found following injuries on her person which clearly denote commission of deliberate and forceful sexual assault:- "Neha is well oriented to time place and person. On internal examination a small bruise 1 cm above Lt. knee secondary sexual character are well developed. On internal examination bleeding from hymen seen a small tear at 9 o' clock position of hymen. X-Ray for age determination samples collected and sent for DNA analysis."

¶8As per the medical opinion, the prosecutrix is said to be aged about 16 years. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. Same is on record at page 47 of the paper book. The prosecutrix in her aforesaid statement has rejoined her previous statement under Section 161 Cr.P.C.

¶9Investigating Officer further recovered the Certificate issued by the Principal of the institution where the prosecutrix was studying. As per the said certificate, the date of birth of the prosecutrix is

01.01.2010. The occurrence giving rise to present criminal proceedings is alleged to have occurred on 21.02.2023. As such, the prosecutrix was aged about 11 years on the date of occurrence. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He, accordingly, submitted the charge sheet dated

10.03.2023 whereby all the named accused have been charge sheeted under Sections 376-D, 365 IPC and Sections 5/6 POCSO Act.

¶10At the very outset, the learned A.G.A. contends that the bail application of co-accused Mohammad Hasan @ Monu has already been rejected by this Court vide order dated 02.05.2023 passed in Criminal Misc. Bail Application No. 19627 of 2023 (Mohammad Hasan @ Monu Vs. State of U.P. and 3 Others). For ready reference, the same is reproduced hereinunder:- "

वररममनदमणणणकपककररजममनरपमररनमपत,

आववदकममहममदहसनउररममननककओरसव मम0 अ0 सस0 171

सन2023,

अनररर धमरम376-णड, 365, 323 भम0 दस0 वव0, धमरम 3;2 द;

अदए3;2 द;

टसदएस0 सड0/एस0 टड0

ऐकटररमधमरम5/6

पमकसमऐकट, रमनम खलडलमबमद,

जजलमसनरकबडरनररममजममनरपरममककरनवहवरमपसरमरवकयमरयमहह।

आववदककवववदमनअजधवकमएवसववदमनअपरशमसककयअजधवकमकमसमनमररमपतमवलड

कमपररशडलनवकयम।

आववदककवववदमनअजधवकमनवरकरपसरमरवकयमवकआववदककमइसपकररममरलरएवस

रजरररडकवसवझनठमरफसमयमरयमहह,

उसनवकजररअपरमधकमरररनहहवकयमहह,

घटनमकक

परमसनचनमररपमटररमयमशववरमकरकवकमरकववलमबसवजलखमयडरयडहहजजसकमकमई

सपषडकररनहहवदयमरयमहह,

वमदडममकदममककलड़ककएकअनयलड़कवकवसमरममटर

समईवकलसवरयडरडररमउससवशमरडररकससबसधबनमरहडरड,

इसडबडचआववदकररम

अवनलवहमफपहहफचरएररमशमरवकएरबरमसवकवलमरइकटमहमरए,

वमदडममकदममनवरमसवकव

लमरगकवसममनवउसलड़कवकमभरमवदयम,

घटनमसरलपरममबमइलएवसचपपलवमलमजजसव

पमजलसलवरयडवकनरमपमजलसनवममबमइलकमकमलवणटवलनहहवनकलवमयमजजससवघटनममम

शमवमलसहडवयवककमपरमचलसकव,

वमदडममकदममनवउसअनयलड़कवसवअपनडबदनममड

हमनवकवकमररआववदककमरसजजशनइसमममलवममरससमवदयम,

वमदडममकदममकवधमरम161 दस0 प0 सस0

कवबयमनएवसपडवड़रमकवधमरम161 व164 दस0 प0 सस0

कवबयमनममकमरक

ववरमधमभमषहह,

आववदकवनदरषहहररमवहइसपकररममवद0 22-2-2023

सवकमरमरमरमम

वनरदहह,

इसजलएआववदककमजममनरपरछमड़वदयमजमय।

ववदमनअपरशमसककयअजधवकमनवआववदककवजममनरकमपबलववरमधकररवहहएरकर

पसरमरवकयमवकआववदकदमरमवमदडककअवयसकलड़कककमअपहररकरकवउसकम

ममरमपडटमरयमररमअनमसनवचरजमवरकमसदसयजमनरवहहएउसकवसमरसममनवहकबलमतकमर

वकयमरयम,

जमरमभडरपककवरकमअपरमधहह, आववदक/

अवभयमकदमरमकमरररअपरमधससजवय

एवसरमभडरपककवरकमहह,

इसजलएआववदककमजममनरपरनछमड़मजमय।

ववदमनअपरशमसककयअजधवकमकवरकरकवपररपवपरकयममपतमवलडपरउपलबधसमकयगकव

आधमरपरआववदककमजममनरपरममकवकएजमनवकमकमईऔवचतयनहहहहररमयह

जममनरआववदनपतवनरसरवकएजमनवयमगयहह।

रदनमसमरवमदकवरमरदमषपरवबनमकमईवटपपरडवकएहहए,

आववदककमजममनरआववदनपत

वनरसरवकयमजमरमहह।"

¶11On the above premise, the learned A.G.A. contends that since the bail application of co-accused has already been rejected coupled with the fact that applicant along with co-accused Mohammad Hasan @ Monu have been charge sheeted under Section 376-D IPC, the prosecutrix is a young girl of tender age as she is below 16 years of age as per the date of birth recorded in the educational record and the medical opinion, which clearly supports the ocular version, therefore, applicant does not deserve any indulgence by this Court.

¶12When confronted with above, the learned Senior Counsel for applicant made a fragile attempt but could not overcome the same.

¶13Having heard, the learned Senior Counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that the objections raised by the learned A.G.A. in opposition to the present application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.

¶14As a result, present application for bail fails and is liable to be rejected.

¶15It is accordingly rejected. Order Date :- 2.12.2023 Vinay High Court of Judicature at Allahabad