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

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51668 of 2023 Applicant :- Imran Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Vipin Kumar,Jai Kishan Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Sri Ravi Kant Kushwaha, learned AGA, for the State, apprised the Court that notice has been served to the informant of the case on 29.11.2023.

¶2Despite service of notice, none appeared on behalf of the informant.

¶3Heard Sri Sandeep Kumar, learned Advocate, holding brief of Sri Vipin Kumar, learned counsel for the applicant and Sri Ravi Kant Kushwaha, learned AGA, for the State.

¶4The instant bail application has been filed on behalf of the applicant with the prayer to release him on bail in Case Crime No.107 of 2023, under Sections 363, 366 and 376 IPC and Section 3/4 POCSO Act, Police Station Nidhauli Kalan, District Etah during pendency of the trial.

¶5FIR of the present case was lodged on 28.6.2023 against the applicant under Sections 363 and 366 IPC and according to the FIR, on 26.6.2023 the daughter of the informant aged about 13 years had gone to collect her mark sheet and transfer certificate but did not return. It is further mentioned in the FIR that applicant, who is tempo driver, has enticed away her daughter.

¶6Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and baseless and actually victim is not 13 years old girl but she is major aged about more than 18 years.

¶7He further submits that with regard to the age of victim, her transfer certificate of Class-V is on record and except this there is no other documentary evidence available with regard to her age and in view of the observation made by the Apex Court in the case of P.Yuvaprakash Vs. State Rep. By Inspector of Police(Criminal Appall No.(S). 1898 of 2023 dated 18.7.2023 the date of birth mentioned in the transfer certificate is not admissible.

¶8He further submits that even during investigation ossification test of the victim was not conducted and, therefore, there is no evidence on record at this stage which can show that victim is below 18 years old girl.

¶9He further submits that in the statement under Section 161 Cr.P.C. victim stated that applicant forcibly had taken her from her school and took up upto Bharatpur (Rajasthan) but when her statement under Section 164 Cr.P.C. was recorded then she did not state that applicant has taken her to Rajasthan and only stated that applicant forcibly committed rape upon her behind the bushes and, therefore, there are material contradictions in both the statements of the victim recorded during investigation and this fact clearly suggests that applicant has falsely been implicated in the present matter.

¶10He further submits that applicant is not having any previous criminal history and in the present matter he is in jail since

29.6.2023.

¶11Per contra, learned AGA opposed the prayer for bail and submits that as per transfer certificate of the school of the victim, at the time of incident she was hardly 13 years old and she in her both the statements recorded under Sections 161 and 164 Cr.P.C. stated that applicant abducted her and committed rape upon her.

¶12Learned AGA however could not dispute the fact that except transfer certificate of the victim, there is no other document of any school of the victim on record to ascertain her age.

¶13He further could not dispute the fact that during investigation ossification test of the victim was not conducted.

¶14Learned AGA also could not dispute the fact that in two statements recorded under Sections 161 and 164 Cr.P.C. victim narrated all together entire different story.

¶15I have heard learned counsel for the parties and perused the record of the case.

¶16However, from the school record it appears that at the time of incident victim was about 13 years old and she in her both the statements recorded under Sections 161 and 164 Cr.P.C. stated that applicant abducted and committed rape upon her but with regard to her age her transfer certificate of a school is on record and except this there is no other document of the school of the victim is on record with regard to her age.

¶17In view of the observation of the Apex Court in the case of P.Yuvaprakash (supra) date of birth of a child cannot be ascertained on the basis of his/her transfer certificate of a school.

¶18Further, except the transfer certificate of the victim, there is no other document on record which can show that she is below 18 years of age as during investigation even her ossification test was not conducted.

¶19Further, in the statement recorded under Section 161 Cr.P.C. victim stated that applicant has taken her from her school and took her to Etah then Agra and then Bharatpur (Rajasthan) through trains but when her statement under Section 164 Cr.P.C. was recorded then she did not state that applicant has taken her upto Rajasthan and only stated that applicant abducted her while she was going to school for the purpose to collect her transfer certificate and thereafter he committed rape upon her behind the bushes, therefore, there are material contradictions in both the statements of the victim.

¶20Further, from the recovery memo which has been annexed at page 28 of the paper book along with the instant bail application it appears that victim was recovered from Bharatpur (Rajasthan) and, therefore, the defence taken by applicant that applicant and victim were having love affair and victim herself had gone to Rajasthan, cannot be completely brushed aside at this stage. Further according to applicant, victim is more than 18 years old. The defence taken by applicant that victim is major aged about 18 years can not be completely discarded as there is no admissible evidence on record which can show that victim is below 18 years of age.

¶21Further, applicant is not having any previous criminal history and he is in jail in the present matter since 29.6.2023.

¶22Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

¶23Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶24Let the applicant-Imran be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

¶25In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

¶26It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 5.12.2023 SKM High Court of Judicature at Allahabad