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

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53383 of 2023 Applicant :- Kamalesh Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sharad Saran Srivastava Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J.

¶1Sri Rajeev Dhar Dwivedi, learned AGA for the State apprised the Court that notice has been served upon the informant on

25.11.2023. Despite service of notice, none present on behalf of the informant.

¶2Heard Sri S.S. Srivastava, learned counsel for the applicant and Sri Rajeev Dhar Dwivedi, learned AGA for the State.

¶3The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 312 of 2023, under Sections 363, 366, 376(3) IPC and Section 3/4 POCSO Act, Police Station Kokhraj, District Kaushambi during pendency of the trial.

¶4FIR of the present case was lodged on the basis of suspicion against one Akash and Rukhsana (non applicant) under Sections 363, 366 IPC.

¶5Learned counsel for the applicant submitted that applicant was not named in the FIR but during investigation after statement of the victim he was made accused.

¶6He further submits that victim in her both the statements recorded during investigation categorically stated that she herself had gone along with applicant. He further submits that however victim in her statement recorded under Section 161 Cr.P.C. stated that against her wishes applicant committed rape upon her but no such allegation of rape was made by her in her statement recorded under Section 164 Cr.P.C.

¶7He further submits that even as per school record victim at the time of incident was about 17 years old and during investigation her ossification test was not conducted.

¶8He further submits that actually victim is major aged about 18 years and even appearance wise she looked like a major girl. He further submits that applicant is not having any criminal history and in the present matter he is in jail since 26.07.2023.

¶9Per contra, learned AGA opposed the prayer for bail but could not dispute the argument on facts advanced by learned counsel for the applicant.

¶10I have heard learned counsel for the parties and perused the record of the case.

¶11However, in the statement recorded under Section 161 Cr.P.C. victim stated that against her wishes applicant committed rape upon her but even in this statement she stated that she according to her own wish had gone along with applicant.

¶12Further, when her statement under Section 164 Cr.P.C. was recorded then she categorically stated that she loved the applicant and she herself had gone along with applicant and did not make any allegation of rape against the applicant.

¶13Even as per school record the age of the victim at the time of incident was Seventeen years one month and during investigation her ossification test was not conducted therefore argument advanced by learned counsel for the applicant that even appearance wise she looked like a major girl cannot be completely brushed aside at this stage.

¶14Further, applicant is not having any criminal history and in the present matter he is in jail since 26.07.2023.

¶15Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

¶16Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

¶17Let the applicant -Kamalesh 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.

¶18In 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.

¶19It 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 :- 13.12.2023 AK Pandey High Court of Judicature at Allahabad