Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17715 of 2021 Applicant :- Aas Mohammad Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohd. Akbar Shah Alam Khan Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Mohd. Akbar Shah Alam Khan, learned counsel for the applicant and Sri Anand Sagar Dubey, learned counsel for the State and perused the material on record.
Vide order dated 30.07.2021, notice was issued to the opposite party No. 2. As per the office report dated 14.09.2021, a report regarding service of notice has been received. The report dated 17.08.2021 of the Chief Judicial Magistrate, Muzaffar Nagar is on record which states that notice has been served on the opposite party No. 2.
No one appears on behalf of the opposite party No. 2 even when the matter is taken in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Aas Mohammad, seeking enlargement on bail during trial in connection with Case Crime No. 192 of 2020, under Sections 354-B, 376, 511 I.P.C., 7/8 POCSO Act, registered at Police Station Bhopa, District Muzaffar Nagar.
The prosecution case as per the first information report lodged on 21.06.2020 by Mohd. Jamshed naming the applicant as the sole accused is that on 21.06.2020 at about 5 PM, he along with his brother Noor Mohammad had gone to the fields for harvesting sugarcane. His daughter aged about 09 years was playing at the tube-well of one Sajid where the applicant who is his neighbour came there, gave Rs. 10 and a toffee to his daughter, allured her and took her to sugarcane file situated nearby, tore the clothes of his daughter and made an attempt to commit rape upon her on which his daughter started crying, hearing which the first informant and his brother reached the place of occurrence and found his daughter lying in a naked condition and the applicant had caught-hold of both her hands after which he got his daughter freed from the applicant and has then came and lodged the first information report.
Learned counsel for the applicant argued that the prosecution story as narrated in the first information report is false. The applicant has been falsely implicated in the present case. It is argued that the prosecutrix was taken for medical examination where the doctor did not find any external fresh injury seen during examination. It is argued that although the prosecutrix in her statement recorded under Section 161 Cr.P.C. has supported the prosecution case but has even exaggerated the version by telling some more physical acts being done by the applicant which is an afterthought and is an act of tutoring. It is argued that the prosecutrix in her statement recorded under Section 164 Cr.P.C. although has again stated the same as per her statement recorded under Section 161 Cr.P.C. but the same is also because of tutoring and on the dictation of her father. Learned has argued that the applicant is having no criminal history and just because the fact that he was the neighbour and there was some dispute between both the family members and he has been falsely implicated in the present case. The applicant is in jail since 22.06.2020.
Per contra, learned counsel for the State vehemently opposed the prayer for bail and argued that the prosecutrix is aged about 09 years as per the first information report. She is a child. The first information report, the statement of the prosecutrix recorded under Section 161 Cr.P.C. and her statement recorded under Section 164 Cr.P.C. fully supports the prosecution case. The applicant is named therein and there are various acts assigned to him.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the applicant is named in the first information report and in the statements of the prosecutrix recorded under Section 161 Cr.P.C. and under Section 164 Cr.P.C. There are allegations against him. The prosecutrix is aged about 09 years and is a child.
Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.10.2021 AS Rathore (Samit Gopal,J.)