BAIL APPLICATION 47548 of 2020 on 7 August 2003

1. List revised.

2. Heard Sri Radhey Shyam Yadav, learned counsel for theapplicant, Sri Ajay Singh, learned AGA-I for the State and perusedthe records.

3. Sri Ajay Kumar Srivastava, learned counsel for the firstinformant is not present even when the matter has been taken up.

4. This is the second bail application. The first bail application ofthe applicant was rejected by this Court vide order dated11.01.2021 passed in Criminal Misc. Bail Application No. 47548of 2020.

5. Learned counsel for the applicant submits that the P.W.-3 ManojKumar Shakya, has been examined before the trial court, who hasstated the date of birth of the victim being recorded in her schoolfrom where she had studied from class 1 to 5. It is submitted thatsubsequently there is a different date of birth in the High Schoolmark sheet of the victim which would go to show that she is minor,as such same is not reliable. It is submitted that the victim is major

6. Per contra, learned counsel for the State opposed the prayer forbail.

7. After having heard the learned counsels for the parties andperusing the records, it is evident that the present bail applicationis the second bail application of the applicant. The first bailapplication of the applicant was rejected by this Court vide orderdated 11.01.2021. The said order reads as under :- "Heard Sri Raj Narayan Gupta, learned counsel for applicant and Sri SatishKumar, learned brief holder for the State and perused the material on record.

This bail application under Section 439 of Code of Criminal Procedure hasbeen filed by the applicant, Avanish, seeking enlargement on bail involved inCase Crime No. 213 of 2019, under Sections 363, 366, 376 I.P.C. and Section3/4 of POCSO Act, registered at P.S. Rajepur, District Farrukhabad.

Learned counsel for applicant argued that although the date of birth ofprosecutrix/victim is 7.8.2003 in the High School examination 2019 MarksSheet but in a certificate issued by the Principal of school which is annexedas Annexure-3 to the affidavit in support of the bail application specifically atpage 24 the date of birth of the victim is mentioned as 15.1.2000 and furtherher date of birth in another certificate given by the Principal of anothercollege is also mentioned as 15.1.2000 and as such the date of birthmentioned in the High School Marks Sheet is palpably false. It is argued thatsaid date mentioned therein cannot be relied upon and the date mentioned inthe two schools in which she previously studied from class 6th to class 8thlater on is to be considered to be true. It is further argued that in thestatement recorded under Section 164 Cr.P.C. of the prosecutrix she has notstated anything about rape being committed on her. Further learned counselfor applicant has placed before the Court the certificate issued by the ChiefMedical Officer, Farrukhabad ascertaining the age therein which has beenopined that the same is also in consonance with two certificates issued by thePrincipals of the two schools and as such the victim is major. It is argued thatshe is a consenting party with the applicant and has been travelling with himout of her own sweet will. It is argued that applicant has no criminal historyas stated in paragraph no. 14 of the affidavit and is in jail since 31.8.2018.

Per contra learned brief holder for the State opposed the prayer for bail andargued that in a matter where High School Marks Sheet is available, the dateof birth mentioned therein will have prevalence over any other document oropinion. It is argued that from the date of birth as mentioned in the HighSchool Marks Sheet the victim was about 16 years at the time of incident andwas thus a minor. It is further argued that the applicant is having criminalhistory of one more case which has not been explained in the affidavit. It is argued that since the victim is a minor as such the consent as argued is of noworth.

Looking to the facts and circumstances of the case,I do not find it a fit casebail, hence, the bail application is rejected.

The party shall file computer generated copy of such order downloaded fromthe official website of High Court Allahabad.

The computer generated copy of such order shall be self attested by thecounsel of the party concerned.

The concerned Court/Authority/Official shall verify the authenticity of suchcomputerized copy of the order from the official website of High CourtAllahabad and shall make a declaration of such verification in writing. "

8. The argument that the statement of P.W.-3 be appreciated and beconsidered to be true and correct with regards to the date of birthof the victim is concerned, the same is for the trial court toappreciate at the appropriate stage. Even if there is a difference inthe date of births as stated by the said witness and the statementrecorded in her high school mark sheet, the same is to be taken upin the trial and has to be considered by the trial court at theappropriate stage. This Court can not give finding regarding thedate of birth of the victim. No ground for bail is made out.

9. Accordingly, the second bail application is rejected.

Order Date :- 23.10.2024Manoj / e-court

(Samit Gopal,J.)