Court No. - 66

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16622 of

2022

Applicant :- Sunil Kumar

Opposite Party :- State Of U.P. Through Secretary Home And 3

Others

Counsel for Applicant :- Abhay Pratap Singh,Ashutosh Yadav

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

Heard Mrs. Abhilasha Singh, Advocate, holding brief of Mr.

Abhay Pratap Singh, the learned counsel for applicant and the

learned A.G.A. for State.

First bail application of applicant was rejected by this Court vide

order dated 14.3.2022. For ready reference, same is reproduced

herein under:

"Case called out in revised list.

None appears on behalf of applicant to press this application for

bail

The learned AGA for State is present.

In view of above, this application for bail is dismissed for want of

prosecution. "

This repeat application for bail has been filed by applicant seeking

his enlargement on bail in Case Crime No. 878 of 2021, under

sections 363, 366 and 376 IPC, under section 3/4 POCSO Act,

Police Station- KHurja Nagar, District Bulandshahr during the

pendency of trial.

Record shows that in respect of an incident which is alleged to

have occurred on 20.7.2021, a delayed F.I.R. dated 25.7.2021 was

lodged by first informant Kamla, mother of the prosecutrix and

was registered as Case Crime No. 878 of 2021, under sections 363,

366 and 376 IPC, under section 3/4 POCSO Act, Police Station-

Khurja Nagar, District Bulandshahr. In the aforesaid F.I.R. two

persons namely, Sunil (applicant herein) and Sumer Singh have

been nominated as named accused.

The gravamen of the allegations made in the F.I.R. is to the effect

that named accused enticed away the daughter of first informant.

After lodging of above mentioned first information report,

Investigating Officer proceeded with statutory investigation of

aforesaid case crime number in terms of Chapter XII Cr.P.C. He

recorded the statement of first informant under section 161 Cr.P.C.

who has supported the F.I.R. The prosecutrix was recovered on

30.8.2021. Thereafter the statement of prosecutrix was recorded

under section 161 Cr.P.C. wherein she has not supported the F.I.R.

This was followed by the statement of prosecutrix under section

164 Cr.P.C. wherein the prosecutrix has departed from her earlier

statement under section 161 Cr.P.C. and has implicated the

applicant in aforesaid case crime number. No medical examination

of the prosecutrix was conducted. As per medical opinion the age

of prosecutrix is said to be 17-18 years. However, no educational

certificate of the prosecutrix could be recovered by Investigating

Officer. Statements of above witnesses were also recorded by the

Investigating Officer who have also supported the F.I.R. On the

basis of above, as well as other material collected by Investigating

Officer during course of investigation which is substantially

adverse to applicant, Investigating Officer submitted the charge

sheet dated 15.9.2021.

Learned counsel for applicant contends that applicant is innocent.

Applicant has been falsely implicated in above mentioned case

crime number. Allegations made in F.I.R. are false and concocted.

Prosecutrix is almost major inasmuch as according to medical

opinion, she is aged about 17 to 18 years. Prosecutrix is a

consenting party. As such, no offence can be said to have been

committed by applicant. There is no medical evidence to support

the prosecution story. According to learned counsel for applicant,

irrespective of above, prosecution of accused for an offence under

section 3/4 POCSO Act can be maintained, if statement of

prosecutrix when taken as a whole, fall in the category of

impecable evidence. When statements of prosecutrix under

sections 161/164 Cr.P.C are examined in the light of above, then it

can be concluded that same are consistent and categorical. In

support of above, reliance is placed upon the judgement of

Supreme Court in Phool Singh Vs