Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9522 of 2021 Applicant :- Arvind Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vinod Kumar Tirpathi,Nimesh Kumar Shukla Counsel for Opposite Party :- G.A.,Ram Sevak Yadav
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned Additional Government Advocate for the State and perused the record of the case.
By means of this application, the applicant, who is involved in Case Crime No.157 of 2020, under Sections 363, 366, 376 (3) IPC and 3/4 of POCSO Act, 2012, police station Sujanganj, district Jaunpur, is seeking enlargement on bail during the trial.
As per the prosecution case, complainant is the mother of the victim, who has lodged the First Information Report on 15.09.2020 under section 363 I.P.C. against the applicant alleging inter alia that her daughter has been missing since the night of 14.09.2020. It is further alleged that she has doubt on the applicant. On 9.10.2020 the victim was recovered. She was medically examined on 9.10.2020 and her statements under sections 161 Cr.P.C. and 164 Cr.P.C. have been recorded on 10.10.2020 and 12.10.2020 respectively.
Thereafter further sections 366, 376 (3) IPC and 3/4 of POCSO Act, 2012, have also been added against the applicant.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case. Referring the statement under section 161 Cr.P.C. of the victim, it is next submitted that the victim has left her parental house and accompanied the applicant on her own volition, thereafter both applicant and the victim have gone to Haryana, where they solemnized their marriage in a temple and started living together as husband and wife. There are contradictions in the statements under section 161 Cr.P.C. and 164 Cr.P.C. of the victim. Main substratum of argument of the learned counsel for the applicant is that the victim was consenting party with the applicant, hence no case of rape is made out against the applicant. The applicant does not have any criminal history to his credit and has been in jail since 13.10.2020. In case the applicant is released on bail, he shall not misuse the liberty of bail and cooperate with the trial.
Per contra, learned Additional Government Advocate opposed the prayer for bail by contending that victim in her statement recorded under Section 164 Cr.P.C. has stated that she is a student of class 10th. As per academic record of the victim, her date of birth is 26.3.2005, according to which the age of the victim on the date of occurrence was about 15 years and six months and as per ossification test report dated 12.10.2020 of the victim, her radiological age is sixteen years. The victim in her statement recorded under Section 164 Cr.P.C. has made serious allegation of kidnapping and rape against the applicant. Offence is heinous in nature. As per Section 375 sixthly of the Indian Penal Code, the plea of consent is immaterial when victim is below eighteen years of age, ergo bail application is liable to be rejected,otherwise there is every possibility of tempering the prosecution witnesses.
Having considered the submissions of the parties,I find that in view of section 2(1)(d) of The POCSO Act, 2012,victim is minor girl,she in her statement recorded under Section 164 Cr.P.C. has made allegation of rape against the applicant, which shall prevail over the statement under section 161 Cr.P.C. For the offence of rape, the statement under section 164 Cr.P.C. of the victim is a primary consideration, which need not to be tested at this stage. There is no material on record to presume the false implication of the applicant. So far as argument of learned counsel for the applicant that the victim was consenting party with the applicant is concerned, it is relevant to mentioned that consent of minor child is immaterial under the law.
Learned counsel for the applicant also placed some bail orders of different cases seeking bail to the applicant on that basis, which are not helpful to the applicant because facts of those cases are entirely different from the facts of this case. This Court is of the view that each case turns on it's own facts / merit and even one additional or more facts may alter the words of conclusion between two cases. Considering the overall facts and circumstances of the case, nature of accusation, age of the victim,her statement under section 164 Cr.P.C. and gravity of the offence, I do not find any good ground to release the applicant on bail at this stage.
The bail application is accordingly rejected.
However, it is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 27.9.2021 Sumaira