Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26980 of 2021 Applicant :- Jeeshan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Satsangi Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Notice was issued to the opposite party no.2 vide order dated 29.07.2021. As per the office report dated 17.09.2021, a report dated 17.08.2021 of C.J.M. concerned has been received stating therein that notice has been served on the opposite party no.2.
The perusal of the said report shows that notice has been served personally on the opposite party no.2.
No one appears on behalf of the opposite party no.2 even when the matter has been taken up in the revised list.
Heard Sri Pankaj Satsangi, learned counsel for the applicant, Sri B.B. Upadhyay, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Jeeshan, seeking enlargement on bail during trial in connection with Case Crime No. 254 of 2020, under Sections 376(3), 452, 506 IPC and Section 3/4 POCSO Act, registered at P.S. Bisauli, District Budaun.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the allegation in the First Information Report lodged by the father of the prosecutrix that the applicant took the prosecutrix with him and committed rape upon her, is false and incorrect. It is argued that even in the statements under Section 161 Cr.P.C. and 164 Cr.P.C. although the prosecutrix has stated that the applicant has committed rape upon her but there are material contradictions which would go to show about the false implication of the applicant.
Learned counsel for the applicant has further drawn the attention of the Court to the medical examination of the prosecutrix and argued that there is no injury found on the body and private parts of the prosecturix and even the doctor has not stated about any injury on any part and looking to the position of the hymen it is clear that she was habitual to sexual intercourse. It is argued while placing para 7 of the affidavit in support of the bail application that the applicant has been falsely implicated in the present case due to village party bandi and political rivalry as the applicant and the prosecutrix are residing in the same vicinity and there was a long running dispute between both the families and just to take revenge from the applicant he has been named and falsely implicated in the present case.
It is further argued that even the prosecutrix could not tell the exact date on which she was raped as in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. she has not stated of any date when rape was committed on her whereas in the First Information Report there is an allegation that she was raped on 13.09.2020. He further argued that the applicant has no criminal history as stated in para 15 of the affidavit and is in jail since 15.09.2020.
Per contra, learned counsel for the State opposed the prayer for bail and argued that as per the allegation in the First Information Report, the prosecutrix is aged about 15 years. Even as per the certificate of the Chief Medical Officer, the age of the prosecutrix has been stated to be about 15 years. The applicant is named in the First Information Report and there are allegations of rape being committed by him. In so far as the specific date about rape being committed is not being stated by the prosecutrix, it is argued that she has stated that she studied in class -V and to a specific question put to her at the time of her recording of statement under Section 164 Cr.P.C. she has stated that the day was a Sunday. It is argued that as such the prosecution is consistent in so far as the naming of the applicant is concerned and the allegation of rape is concerned. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is named in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix and there are allegations of rape against the applicant. The prosecutrix is aged about 15 years as stated in the First Information Report and also by the Chief Medical Officer, Budaun in his age certificate. She is a minor. I do not find it a fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
The bail application is, accordingly, 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 :- 21.9.2021 M. ARIF (Samit Gopal, J.)