Allahabad High Court

Anil Kumar vs State Of U.P. And 3 Others on 4 September, 2024

Author:
Krishan Pahal

Bench:
Krishan Pahal

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:143196

Court No. - 68

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21461 of 2024

Applicant :- Anil Kumar

Opposite Party :- State Of U.P. And 3 Others

Counsel for Applicant :- Deepak Kumar Singh,Mohit Kumar Tiwari,Shravan Kumari

Counsel for Opposite Party :- Deepak Kumar Verma,G.A.

Hon'ble Krishan Pahal,J.

1. Heard Ms. Shravan Kumari, learned counsel for the applicant and Sri Deepak Kumar Verma, learned counsel for the informant as well as Sri R.P. Patel, learned A.G.A. for the State and perused the material placed on record.

2. Applicant seeks bail in Case Crime No. 59 of 2024, U/S 376, 506
IPC
and 3/4
POCSO Act
, Police Station Manjhanpur, District Kaushambi, during the pendency of trial.

PROSECUTION STORY:

3. The applicant is stated to have raped the daughter of the informant aged about 17 years on 19.2.2024 at about 2.00 am when she had gone out to ease herself out. The mother of the victim is stated to have reached there after hearing the shrieks of the victim, as such, the FIR was instituted on 3.3.2024.

ARGUMENTS ON BEHALF OF THE APPLICANT:

4. The applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. He has nothing to do with the said offence.

5. The FIR is delayed by fourteen days and there is no explanation of the said delay caused.

6. The victim by her appearance seems to be major. As per the ossification test report, her age comes out to be between 16 and 18 years.

7. The victim is the consenting party, as is evident from the circumstances of the case. There is no injury sustained by the victim as per the medical report.

8. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length.

9. There is no criminal history of the applicant. The applicant is languishing in jail since 7.2.2024. In case, the applicant is released on bail, he will not misuse the liberty of bail.

ARGUMENTS ON BEHALF OF INFORMANT/STATE:

10. The bail application has been opposed but the fact that there is no criminal history of the applicant has not been disputed.

11. The victim was minor at the time of the said offence. As per her Class 8th Certificate, her date of birth was 7.8.2007, as such, her consent, if any, cannot be taken into consideration in the eyes of law.

CONCLUSION:

12. In light of the case of P. Yuvaprakash vs. State Rep. by Inspector of Police, AIR 2023 SC 3525, the Supreme Court has observed that in the absence of records relating to the birth of the victim, no other documents except the Matriculation or equivalent certificate from the concerned examination board or certificate by a corporation, municipal authority or a Panchayat can be relied upon to ascertain the age of the victim.

13.
In the judgement of Supreme Court passed in
Jaya Mala Vs. State of J & K
, (
1982) 2 SCC 538 and Mohd. Imran Khan vs. State (Govt. of NCT of Delhi
), (2011) 10 SCC 192, it has been opined that the radiologist cannot predict the correct date of birth rather there is a long margin of 1 to 2 years on either side.

14. The well-known principle of "Presumption of Innocence Unless Proven Guilty," gives rise to the concept of bail as a rule and imprisonment as an exception.

15. A person's right to life and liberty, guaranteed by
Article 21
of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt.
Article 21
of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been recapitulated by the Supreme Court in
Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.
, 2022 INSC 690.

16. Reiterating the aforesaid view the Supreme Court in the case of
Manish Sisodia Vs. Directorate of Enforcement
2024 INSC 595 has again emphasised that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that ?bail is a rule and jail is an exception?.

17. Learned AGA and learned counsel for the informant could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

18. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA.

19. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, the delay in lodging of the FIR, coupled by the fact that there is no injury sustained by the victim and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

20. Let the applicant- Anil Kumar involved in aforementioned case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

(i) The applicant shall not tamper with evidence.

(ii) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under
Section 313
Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

21. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

22. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

Order Date :- 4.9.2024

Shalini

(Justice Krishan Pahal)