# Utkarsh Patel @ Uttu @ Raj Patel v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 1 ILRA 880
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-03
- **Case number:** Crl. Misc. Bail Appl. No. 8192 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/utkarsh-patel-uttu-raj-patel-v-state-of-u-p-anr-opp-parties-48070
- **Pages:** 6

## Headnote

POCSO Act, 2012 -Victim is approx 4 years
old-accused-Applicant is 18 years old-teased
sexually and threatened her-Statement of child
victim-accused-applicant tried to put his penis in
the vagina of the victim-under life threat-act
sufficient to come under ambit of aggravated
sexual assault u/s 5 and u/s 376 AB IPC-Gravity
of offence and severity of punishment do not
warrant release on bail.

Bail Application rejected. (E-9)

List of Cases cited:

1.Prahlad Singh Bhati Vs. NCT, Delhi & anr.-
(2001 4 SCC 280 )

## Text

880 INDIAN LAW REPORTS ALLAHABAD SERIES
held in the judgment of Hon'ble the
Supreme Court in Dataram Singh Vs.
State of U.P. and Others reported in
[(2018) 3 SCC 22], I find force in the
submission of learned counsel for the bailapplicant to enlarge him on bail.

18. Considering the rival submissions
of learned counsel for the parties, without
expressing any opinion on the merits of the
case
and
considering
the
nature
of
accusation, complicity of the accusedapplicant, gravity of the offence and the
severity
of
punishment
in
case
of
conviction and the period for which he is in
jail, I find force in the argument of learned
counsel for the accused-applicant. The
accused-applicant is entitled to be released
on bail in this case.

19. Let applicant-Nan Bhaiya @
Mohd. Saeed be released on bail in in
Case Crime No. 131 of 2020, under
Sections 376, 504, 506 IPC, Police
Station Fursatganj, District Amethi, on
his furnishing a personal bond worth Rs.
100,000/- and two reliable sureties of the
like amount of two different sureties
whose social and economic status shall be
subject to satisfaction and verification of
the court concerned subject to following
additional conditions, which are being
imposed in the interest of justice:-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed
for evidence when the witnesses are
present in court. In case of default of this
condition, it shall be open for the trial
court to treat it as abuse of liberty of bail
and pass orders in accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may
proceed against him under Section 229-A
of the Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence, proclamation
under Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court
on the date fixed in such proclamation,
then,
the
trial
court
shall
initiate
proceedings against him, in accordance
with law, under Section 174-A of the
Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court
on the dates fixed for (i) opening of the
case, (ii) framing of charge and (iii)
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.
----------
(2022)01ILR A880
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.01.2022

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Crl. Misc. Bail Appl. No. 8192 of 2021

Utkarsh Patel @ Uttu @ Raj Patel
 ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Ashutosh Kumar

Counsel for the Respondents:
G.A., Gulamali Rashidi
1 All. Utkarsh Patel @ Uttu @ Raj Patel Vs. State of U.P. & Anr.
881
POCSO Act, 2012 -Victim is approx 4 years
old-accused-Applicant is 18 years old-teased
sexually and threatened her-Statement of child
victim-accused-applicant tried to put his penis in
the vagina of the victim-under life threat-act
sufficient to come under ambit of aggravated
sexual assault u/s 5 and u/s 376 AB IPC-Gravity
of offence and severity of punishment do not
warrant release on bail.

Bail Application rejected. (E-9)

List of Cases cited:

1.Prahlad Singh Bhati Vs. NCT, Delhi & anr.-
(2001 4 SCC 280 )

2. Subrata Biswas Vs. State, reported in 2019
Criminal Law General 4327

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out. Learned
counsel Sri Ashutosh Kumar, Advocate
for
the
bail-applicant
and
learned
Additional Government Advocate for the
State
are
present
through
video
conferencing in virtual hearing of the
case.

2. The present bail-application is
moved for and on behalf of accusedapplicant-Utkarsh Patel @ Utkarsh @
Uttu @ Raj Patel, aged about 18 years,
involved in Case Crime No. 64 of 2021
registered under Sections 376AB, 323,
506 IPC and Sections 5/6 of the
Protection of Children from Sexual
Offences Act, 2012 at Police Station
Banthra, District Lucknow.

3. Counter affidavit and rejoinder
affidavit have already been exchanged
between the parties of the case. The case
is ripe for hearing.

4. The occasion of present bailapplication arisen on rejection of bailplea of the accused-applicant by learned
Special
Judge,
POCSO
Act/Addl.
Sessions Judge, Lucknow vide order
dated 12.07.2021.

5. The victim of the incident is
approximately 4 years' old girl child
(whose name is not being disclosed and
in place of her name the word ''victim'
shall be used hereinafter in view of
Section 228-A of the Indian Penal Code).
The First Information Report lodged on
behalf of the victim by her mother on the
same day of incident dated 25.02.2021
reveals that when the victim child was
playing outside her house at about 2:30
p.m., the accused-applicant Utkarsh @
Uttu picked and taken away her to his
house where he teased her sexually and
threatened, if she tells the incident to
anybody else, she will be killed. The
victim came to her house weeping and
stated the incident to her mother. The
complainant-mother and father of the
victim approached the police station with
their
daughter
to
lodge
the
First
Information Report accordingly.

6. Primarily, the offence was
registered under Section 354-A, 323, 506
IPC alongwith Section 11/12 of the
POCSO Act. During the investigation the
child was subjected to medico legal
examination with regard to sexual violence
two days after the incident on 27.02.2021.
The help of interpreter was taken and the
version of the child with regard to the
incident, as told to the interpreter, was
recorded,
according
to
which
on
25.02.2021 at 2:30 p.m. when she was
playing outside her house, the accused
Utkarsh @ Uttu seeing lonely picked and
882 INDIAN LAW REPORTS ALLAHABAD SERIES
taken away her to his house where he
teased her sexually and threatened to life.
No injury on the person and private part of
the child is reported. The age of the victim
child was medically assessed on the basis
of medico legal examination as well as
from her school certificates bearing date of
birth 13.09.2016, approximately 4 year and
6 months' on the date of incident. She told
doctors
during
her
medico
legal
examination that the accused tried to put
his penis in the vagina of girl child.

7. The bail application is moved on
behalf of the present accused-applicant
under Sections 376AB, 323, 506 IPC and
Sections 5/6 of the Protection of Children
from Sexual Offences Act, 2012. The
Section 376AB IPC makes punishable the
offence of rape under 12 years' age victim
whereas the offence under Section 5 of the
Protection
of
Children
from
Sexual
Offences Act, 2012 defines the aggravated
penetrative sexual assault enumerating
several acts of the like nature, one of which
is, whoever commits penetrative sexual
assault on a child causing grievous hurt or
causing bodily harm injury or injury to the
sexual organs of the child, shall be
punished under Section 6 of the Act with
rigorous imprisonment of term which shall
not be less than 20 years but which may
extend to imprisonment for life which shall
mean imprisonment for the reminder of
natural life of that person and shall also be
liable to fine or both.

8. Learned AGA by filing counter
affidavit in para 12 has stated that truth of
the matter is that the offence committed by
the accused is heinous in nature. During
investigation,
sufficient
evidences
of
committing the offence by the accused are
obtained on the basis of which he is
arraigned under Sections 376AB, 323, 506
IPC and Sections 5/6 of the Protection of
Children from Sexual Offences Act, 2012,
accordingly chargesheet has been sent to
the court. Para 12 and 13 of the counter
affidavit are quoted hereunder:-

"12- ;g fd izLrj&10 eas of.kZr dFku vlR;
,oa fujk/kkj gSA tcfd lR;rk ;g gS fd
izkFkhZ@vfHk;qDr }kjk dkfjr dh x;h ?kVuk laxhu
dksfV dh gSA foospuk esa izkFkhZ@vfHk;qDr ds fo#)
izekf.kr lk{; izkIr gq, gS rFkk vijk/k /kkjk 376
,ch@323@506 Hkk0na0fo0 o /kkjk 5@6 ikDlks ,DV
dk izekf.kr ik;k x;k gS] rn~uqlkj vkjksi&i=
lEcfU/kr U;k;ky; }kjk mfpr ek/;e izsf"kr fd;k
x;k gSA vkjksi&i= dh izekf.kr izfr laYkXud
lh0,0&8 gSA

13- ;g fd izLrj&11 esa of.kZr dFku vlR; ,oa
fujk/kkj gSA tcfd lR;rk ;g gS fd izkFkhZ@vfHk;qDRk
}kjk dh x;h ?kVuk ds i;kZIRk lk{; ekStwn gS rFkk
vijk/k dkfjr djus dk nks"kh gSA foospuk esa
izkFkhZ@vfHk;qDRk ds fo#) izekf.kr lk{; izkIRk gq, gS
,oa vijk/k izekf.kr ik;k x;k gSA"

9. Learned counsel for the bailapplicant, in view of the fact that First
Information Report is lodged on the basis
of statement of the victim, a four years' old
child who might have been tutored by her
parents. He emphasized on the report of
medico legal examination wherein, no
injury was found on the person and private
part of the victim. Learned counsel further
submitted that accused-applicant has no
criminal antecedent, therefore, he should be
granted bail.

10. This is established principle of
law that while assessing the entitlement of
an accused to be released on bail, his role
in the commission of offence with which,
he is arraigned and the evidences as to his
presence and involvement is to be given
weight.
In
case
the
presence
and
involvement of accused is prima facie
established
then
gravity
of
offence,
apprehension as to the tampering of
1 All. Utkarsh Patel @ Uttu @ Raj Patel Vs. State of U.P. & Anr.
883
evidences and of influencing adversely the
witnesses if the accused is released on bail,
are to be considered. In Prahlad Singh
Bhati Vs. NCT, Delhi and another -
(2001 4 SCC 280 ), Hon'ble the Supreme
Court has held some parameters for grant
of bail, which are being quoted hereunder:-

"8. The jurisdiction to grant bail has to
be exercised on the basis of well-settled
principles
having
regard
to
the
circumstances of each case and not in an
arbitrary manner. While granting the bail,
the court has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail,
the
character,
behaviour,
means
and
standing of the accused, circumstances
which
are
peculiar
to
the
accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public or State and similar other
considerations. It has also to be kept in
mind that for the purposes of granting the
bail the legislature has used the words
"reasonable grounds for believing" instead
of "the evidence" which means the court
dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a
genuine case against the accused and that
the prosecution will be able to produce
prima facie evidence in support of the
charge. It is not expected, at this stage, to
have the evidence establishing the guilt of
the accused beyond reasonable doubt."

11. According to the parameters laid
down by the Apex Court in the judgment
referred
herein-above,
the
matter
is
examined factually and legally. On facts, it
is found that the medico legal examination
was done with the assistance of
interpreter, as provided in the POCSO Act
as well as in the Evidence Act with regard
to the child witnesses.

12. It comes out from the statement of
the child victim of the incident that
accused-applicant tried to put his penis in
the vagina of the victim under threat to life
and by beating her also. Such an act is
sufficient to bring the accused in the ambit
of offence of aggravated sexual assault as
defined
under Section
5
and
made
punishable under Section 6 of the POCSO
Act. Moreover, the child is less than 12
years in age, therefore offence under
Section 376AB is also constituted. The plea
of lacking injuries on the person and
private part of the victim is meaningless for
the reason the victim was subjected to
medico legal examination after two days of
the incident on 27.02.2021. The aforesaid
offence, as provisioned in the POCSO Act,
is not only heinous but also sever in
punishment of rigorous imprisonment for
life.

13. The child repeatedly stated the
incident in the same words and manner
from the very inception firstly to mother
thereafter before the doctors who examined
her medically. The statements of the victim
before the Child Welfare Committee and
before the Magistrate under Section 164
Cr.P.C. have also no contradiction from the
statement made by her at the very
inception. The certified copies of the
statements are annexed by the learned
AGA
with
counter
affidavit.
Before
Magistrate under Section 164 Cr.P.C., the
child stated that presently she does not go
to school. She was playing outside her
house when Puttu, the accused, taken away
her to his house. He shown his penis to her
884 INDIAN LAW REPORTS ALLAHABAD SERIES
and put that in the way of her urinal. He
tried to allure her by giving an edible salty
then beaten to force her and threatened to
life if the incident is told to anyone else.
Before CWC victim child stated the same
thing by saying that the accused put down
the underwear wore by her and penetrated
his penis in her vagina. When she began to
cry, he beaten her and threatened to life if
she tells it to her parents.

14. On the basis of consistent
statements as to the commission of offence
and it's manner, the prosecution has
sufficiently shown and established the
prima facie case under the aforesaid
Sections 376AB, 323, 506 IPC and
Sections 5/6 of the Protection of Children
from Sexual Offences Act, 2012.

15. It is no where explained in the
affidavit supporting the bail application and
rejoinder affidavit that why the statement
of the child victim of tender age should be
treated a false implication. In the absence
of any such explanation the implication of
offence over the applicant should be treated
as true.

16. In the light of facts and
circumstances discussed herein-above, it
would be relevant to refer Section of 29 of
the POCSO Act with regard to presumption
as to certain offences which is quoted
hereunder:-

"Presumption
as
to
certain
offneces:- Where a person is prosecuted for
committing or abetting or attempting to
commit any offence under Sections 3, 5, 7
and Section 9 of this Act, the Special Court
shall presume, that such person has
committed or abetted or attempted to
commit the offence, as the case may be
unless the contrary is proved."

17. The aforesaid presumption, as
provisioned under Section 29 of the
POCSO Act, is quite applicable in the
present case as the prosecution has
successfully established the primary facts
constitute the offence. In this regard, the
decision of a Division Bench of Calcutta
High Court in a similar set of facts in the
case law as propounded in Subrata Biswas
Vs. State, reported in 2019 Criminal
Law General 4327, para 22 is quoted
hereunder:-

"The statutory presumption applies
when a person is prosecuted for committing
offence under Sections 5 and 9 of the Act
and a reverse burden is imposed on the
accused to prove the contrary. The word "is
prosecuted" in the aforesaid provision does
not mean that the prosecution has no role to
play in establishing and/or probablising
primary facts constituting the offence. If
that were so then the prosecution would be
absolved of the responsibility of leading
any evidence whatsoever and the Court
would be required to call upon the accused
to disprove a case without the prosecution
laying the firm contours thereof by leading
reliable and admissible evidence. Such an
interpretation not only leads to absurdity
but
renders
the
aforesaid
provision
constitutionally
suspect.
A
proper
interpretation of the said provision is that in
a case where the person is prosecuted under
Section 5 and 9 of the Act (as in the present
case) the prosecution is absolved of of the
responsibility of proving its case beyond
reasonable doubt. On the contrary, it is only
required to lead evidence to establish the
ingredients
of
the
offence
on
a
preponderance of probability. Upon laying
the foundation of its case by leading cogent
and reliable evidence (which does not fall
foul of patent absurdities or inherent
probabilities) the onus shifts upon the
1 All. Sumit Kumar @ Angrej Vs. State of U.P.
885
accused to prove the contrary. Judging the
evidence in the present case from that
perspective, I am constrained to hold that
the version of the victim (PW-1) and her
mother (PW-2) with regard to twin
incidents of 24th March, 2016 and 18th
April, 2016 if taken as whole, do not
inspire confidence and runs contrary to
normal human conduct in the backdrop of
the broad probabilities of the present case."

18. The want of criminal antecedent
on the part of the accused is not of
probative value in support of his plea of
innocence
as
against
the
nature
of
accusation imputed on him by an innocent
girl child of 4 years. The gravity of offence
and severity of punishment also do not
warrant the release on bail looking into the
fact that accused-applicant resides in the
neighbourhood of the child victim may
under the fear of severe punishment in case
the trial succeeds against him. Prima facie,
there is no facts on record rebutting the
presumption against the accused.

19. In view of the discussions made
herein-above,
without
making
any
comment as to the merit of the case,
keeping into mind the gravity of offence
and severity of offence as well as the
prima
case
of
the
prosecution
is
established against the accused-applicant,
I find no force in the submission of
learned counsel for the bail applicant for
grant of bail. The bail application of
accused-applicant-Utkarsh
Patel
@
Utkarsh @ Uttu @ Raj Patel, involved in
Case Crime No. 64 of 2021, under
Sections 376AB, 323, 506 IPC and
Sections 5/6 of the Protection of Children
from Sexual Offences Act, 2012 registered
at
Police
Station
Banthra,
District
Lucknow, is hereby rejected.

20. Learned trial court, keeping in
view the future of the child, is directed to
conclude the trial as practically as possible
expeditiously. The trial court is further
directed to not to be sweared with the
observations made herein-above while
deciding the case on merit on the basis of
evidences duly examined and proved
before it.
----------
(2022)01ILR A885
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Crl. Misc. Bail Appl. No. 11740 of 2021

Sumit Kumar @ Angrej ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Neelam Verma, Sanjiva Kumar Tripathi

Counsel for the Opp. Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 302 & 201 -Name of the Applicant
not taken by neither informant nor by
deceased's wife in her first St.mentdeceased's wife in her second St.ment
recorded after 2 months took Applicant's
name-present
case-of
circumstantial
evidence-no continuing chain of evidence.

Bail granted. (E-9)

List of Cases cited:

1. Criminal Appeal no. 1704/2017-Balkrishna
Tukaram Angre Vs The St. of Maharashtra

2. Dataram Singh Vs St. of UP & anr, (2018) 3
SCC 22