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

Court No. - 37 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49145 of 2023 Applicant :- Ajim Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Manoj Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Ajay Bhanot,J. Shri Ashish Kumar Ojha, 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. 457 of 2023 at Police Station-Kwarsi, District-Aligarh under Sections 363, 376D IPC and Section 5/6 of the POCSO Act. The applicant is in jail since

10.07.2023. The bail application of the applicant was rejected by the learned trial court on 20.09.2023. The following arguments made by Shri Manoj Kumar Tiwari, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Ashish Kumar Ojha, 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 17 years 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) and on the following grounds:

(i) There are material contradictions in the age of the victim as recorded in various prosecution documents.

(ii) 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 legal basis for age related entries in the school records. The school records disclosing her age as 16 years and 6 months are unreliable.

(iii) The victim in her statements under Section 161 and 164 Cr.P.C. has asserted that she is 17 years of age.

(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 the same would have established the majority of the victim and falsified the prosecution case. The victim is in fact a major.

¶4The applicant was not named in the FIR.

¶5The victim and the applicant were intimate.

¶6The F.I.R. is the result of opposition of the victim's family to the said relationship.

¶7The victim in her statement under Sections 161 Cr.P.C. and 164 Cr.P.C. has admitted that she rode pillion on a motorcycle being driven by the applicant of her own volition. She has also asserted that she spent two days with the applicant in the accommodation of the latter's friend. Thereafter, the victim accompanied the applicant to the house of one Arzoo where she stayed at the behest of the applicant for four days.

¶8Major inconsistencies in the F.I.R., statements of the victim under Section 161 Cr.P.C. and under Section 164 Cr.P.C. discredit the prosecution case.

¶9The victim was never confined or bound down. She was at public places but never resisted the applicant nor raised an alarm. Her conduct 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 cooperate with the court 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-Ajim 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 :- 30.11.2023/Vandit High Court of Judicature at Allahabad