Court No. - 54
Case :- CRIMINAL APPEAL No. - 3826 of 2017 Appellant :- Gabbu Alias Abdul Faij Respondent :- State Of U.P. & Another Counsel for Appellant :- Om Prakash Yadav,Jai Prakash Mishra Counsel for Respondent :- G.A.,R. A. Ram
Hon'ble J.J. Munir,J.
1. Heard Sri Jai Prakash Mishra, learned counsel for the appellant and Sri Saqib Meezan, learned A.G.A. appearing on behalf of the State and duly perused the record summoned from the lower court.
2. This is an appeal from the order of the Additional Sessions Judge, Court No.1, Azamgarh, dated 03.07.2017, in bail application no.1305 of 2017, under Sections 376A, 506 IPC and Section 3(2)5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘Act’) and bail application no.1489 of 2017, under Sections 376D, 504, 506 IPC and Sections 3(2)5, 3(2)5Ka, 3(1)Da, Dha of the Act and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, both relating to case crime no.115 of 2017, P.S. Gambhirpur, District Azamgarh, rejecting the aforesaid bail applications preferred by the appellant.
3. The short case of the prosecution is that on 28.04.2017 at 8.00 PM, the daughter of the first informant, Meera Devi aged about 14 years had ventured out into the open to answer the call of nature when the appellant Gabbu Alias Abdul Faij, who is a native of the village along with another companion appeared and forcibly carried away the informant’s daughter by muffling her voice. He carried her off to a Mahalia Kabristan, where stripping her, the appellant and his companion, ravished her by turns. They threatened her with death. Upon alarm being raised, the accused escaped.
4. The learned court below upon consideration of the matter found that it was a case of rape with a minor and it was a case of gang rape, where the appellant and the co-accused putting the prosecutrix under fear of death, ravished her. He found that the FIR in this connection has been lodged and in the medical examination, age of the victim was found to be 18 years. The statement of the prosecutrix under Section 164 Cr.P.C. was duly recorded on 28.04.2017, where she had supported the prosecution story and described in graphic detail about all that she underwent on the fateful night. The learned court below also took into consideration the fact that the bail application of the co-accused Azaad had also been rejected by the Special Court.
5. This Court does wish to place on record here as a matter of principle that there is no parity about rejection. The principle of parity applies only for the purpose of grant of bail.
6. Be as it may, on all these facts noticed, the learned court below rejected the bail application. Aggrieved, the present appeal has been filed.
7. Learned counsel for the appellant has submitted that the order impugned is manifestly erroneous, bad on the face of the record, and, therefore, deserves to be set aside. He submits that there are contradictions in the statements of the prosecutrix that he has attempted to point out during the hearing on a comparison of the statements under Sections 161 & 164 Cr.P.C. He has emphasized that the prosecutrix has been medically opined to be 18 years of age, that takes the case out of the teeth of the POCSO Act. He has further emphasized that in the medical report, no sign of rape was found. It has been urged that the appellant has been implicated falsely on account of the proverbial village rivalry and politics, and, in the end prayed that the impugned order be set aside and reversed.
8. Learned A.G.A. on the other hand has opposed the prayer for bail and submitted that it is a case of rape with a young girl and the statements of the prosecutrix under Sections 164 & 161 Cr.P.C. are consistent, that clearly make out a case. It has been emphasized that according to the prosecutrix and the evidence that has been collected by the police during investigation, it is a case of gang rape, which is a very heinous offence, that has been added to the Statute Book looking to the fact that it is a contemporary scourge in society.
9. Learned counsel for the appellant on the other hand pointed out on the basis of assertions made in his rejoinder affidavit that the entire story is concocted and the appellant has been falsely implicated, somuch so, that the victim herself would call the co- accused over his mobile number by mobile no.7052911153, which she did on 28.04.2017. He has asserted the call detail records of the said mobile be called for.
10. Having given an anxious consideration to the matter, this Court finds that while it is true that the accused may not be a child, though no opinion need be expressed at this stage, whether the POCSO Act is attracted or not, the statement of the prosecutrix under Section 164 Cr.P.C. is clear and categorical, where it is said that two accused, by turn, ravished her. There is no uncertainty about the stand which is a statement on oath by a young girl made before the Judicial Magistrate. The said stand of the prosecutrix is consistent with her earlier statement to the police and the FIR version.
11. Going by the said evidence, this Court finds that at the stage of bail, it cannot be doubted prima facie that the prosecutrix has falsely implicated the appellant. It is a case, prima facie, of gang rape, which is a very heinous offence. It is a contemporary scourge as pointed out by the learned A.G.A., regarding which the legislature has stepped in by enacting the provisions of Section 376D IPC by carving it out as a special category of the offence of rape – a very aggravated form of it. It is made clear that anything said in this order, may not influence the assessment of the evidence by the trial court in any manner whatsoever. Anything that is said here, is tentative and of no consequence to the merits that are to be judged at the trial.
12. Taking totality of the circumstances of the case, this Court does not find it a fit case for bail.
13. The appeal is, therefore, dismissed.
14. It is directed that the court below shall proceed with and dispose of the trial expeditiously, if possible, within six months next from the date of receipt of certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar V. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
15. It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence positively.
16. Let a copy of the order be certified to the court concerned for strict compliance.
17. Let the records of the court below be sent back at once.
Order Date :- 29.3.2018 S. Thakur/ Anoop