Akhilesh Gaur v. State of U.P. and 3 Others

Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34745 of 2023 Applicant :- Akhilesh Gaur Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Kalp Dev Mishra,Awashesh Kumar Counsel for Opposite Party :- G.A.,Rajiv Kumar Pandey Hon'ble Ajay Bhanot,J. Ms. Sujata Chaudhary, learned AGA 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. 170 of 2023 at Police Station-Saidpur, District-Ghazipur under Sections 363, 366, 376 IPC and Section 3/4 POCSO Act. The applicant is in jail since 21.06.2023. The bail application of the applicant was rejected by the learned trial court on 17.07.2023. The following arguments made by Shri Sunil Kumar, learned counsel holding brief of Shri Kalp Dev Mishra, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Ms. Sujata Chaudhary, learned AGA 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 of 15 years of age in the F.I.R. 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) on the following grounds:

(i) There is no lawful basis of entry as regards the age of the victim in her school records. The school certificate showing her age as 14 is not reliable.

(i) The age of the victim was incorrectly got registered in the school records by the victim's parents to give her an advantage in life. There is no lawful basis for the age related entry of the victim in the school records. The school certificate showing her age as 14 years 11 months and 13 days is not reliable.

(iii) The victim in her statements under Section 161 and 164 Cr.P.C. has asserted that she is 14 years 11 months and 13 days and 15 years of age respectively.

(iv) No medical examination to determine the correct age of the victim as per the latest scientific criteria and medical protocol by eminent doctors from a reputed institution was got done by the prosecution as it would establish the majority of the victim and falsify the prosecution case. The victim is in fact 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 Sections 164 Cr.P.C. has admitted to intimacy with the applicant. She has further asserted that she eloped with the applicant to Delhi of her own volition and established consensual physical relations. She has further stated that she wants to marry the applicant.

¶7No allegation of abduction, wrongful detention or commission or rape by the applicant with the victim has been made by her in the aforesaid statement.

¶8Major inconsistencies in the FIR, the statement under Section 161 and 164 Cr.P.C. discredit the prosecution case.

¶9The 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.

¶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 join the trial 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-Akhilesh Gaur 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 :- 17.10.2023 Vandit High Court of Judicature at Allahabad