Court No. - 74
Case :- CRIMINAL APPEAL No. - 1472 of 2021 Appellant :- Aarif Respondent :- State of U.P. and Another Counsel for Appellant :- Rajesh Yadav Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant and learned AGA for the State and perused the record.
Notice was sent to respondent no.2 and the Chief Judicial Magistrate, concerned has submitted that the notice has been personally served on respondent no.2 but none is present for the respondent no.2.
This appeal has been filed by appellant Aarif against the impugned order dated 29.01.2021 passed by learned Special Judge, SC/ST (P.A.) Act, Firozabad passed in Bail Application No.338 of 2021,(CNR No.UPFD01-0000898-2021) (Aarif vs.
State of U.P.), arising out of Case Crime No.20 of 2020, under Section 368, 376D I.P.C. and Section 3(2)5 of SC/ST Act, P.S. Ramgarh, District Firozabad by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
Submission of learned counsel for the appellant is that the appellant is challenging the impugned order on the ground that the learned Special Judge, SC/ST Act has wrongly rejected the bail application and has passed the impugned order in the very routine way. It has been further submitted that the victim is major and she voluntarily went with co-accused Shahrukh to Delhi where they were living as husband and wife. The statement of the victim given under Section 164 Cr.P.C. is contradictory with her statement given under Section 161 Cr.P.C. It has been further submitted that the case is totally false and there is no public witness to support the FIR version. The learned Special Judge has ignored the material aspect of the matter and has rejected the bail application, which is liable to be set aside. Further submission is that there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA has vehemently opposed the prayer and has submitted that the victim has stated in her statement under Section 164 Cr.P.C. given to the Magistrate with regard to involvement of the appellant in the commission of the offence of gang rape which has been committed on a girl of scheduled caste community, therefore, there is no illegality in the impugned order and the appeal is liable to be dismissed.
Considered the submissions of both the sides. Once the statement of the victim has been recorded before the Magistrate under Section 164 Cr.P.C., it cannot be rendered false on the basis of statement under Section 161 Cr.P.C. Atleast at this stage, her statement under Section 164 Cr.P.C. stands on better footing. Perusal of the statement of the victim shows that she has clearly stated before the Magistrate that the appellant and another co-accused persons caught her and, thereafter, Jamila caught her and smell handkerchief by which she got fainted. She also threatened of dire consequences. Thereafter, the accused persons took her to some place where they committed gang rape on her. She has also stated that Jamila was also involved and she called several outsider for committing sexual intercourse with her for which she used to take Rs. 5000/- to 10,000/-. She was also beaten by the accused person and co- accused Shahrukh gave her threatening for dire consequences.
Learned Special Judge, SC/ST Act has considered all aspect of the matter and taking into consideration the statement of the victim and also considering that it is a case of gang rape and the same has been committed on a girl of scheduled caste community, he has rejected the bail application.
In the facts and circumstances of the case and the evidence available on record, at this stage, I do not find any illegality in the impugned order. I find no force in appeal and the same is liable to be dismissed.
The learned Special Judge is directed to expedite the trial and disposed of the same, in accordance with law.
Order Date :- 19.8.2021 Mini