Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21987 of 2021 Applicant :- Kalua Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Narendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1- Heard Mr. Narendra Singh, learned counsel for the applicant, Mr. Rabindra Kumar Singh, learned Additional Government Advocate assisted by Mr. Prashant Kumar Singh, learned Brief holder representing the State and perused the record of the case.
2- The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 202 of 2019, under Sections 363, 376D(B) I.P.C. and Section 5/6 of Protection of Children from Sexual Offences Act, 2012, Police Station-Awagarh, District- Etah, during the pendency of trial.
3- In short compass, the brief facts of the case are that informant (uncle of victim) lodged F.I.R. on 25.08.2019 at 7:33 O'clock for the offence under Section 376DB and 363 I.P.C. and Section 4 of Protection of Children from Sexual Offences Act, 2012 regarding an incident which took place on the intervening night of 24/25.08.2019 against two unknown persons alleging inter alia that his niece, aged about 10 years, is student of fourth standard. In the night of 24/25.08.2019, she was sleeping in her house where her mother and father were also sleeping. At about 3:00 a.m., in the night, two unknown persons came there and took her outside the house and forcefully committed rape on her. She became unconscious. On gaining consciousness, she found herself in a field. On coming back, victim narrated the incident, which happened with her. The information was given to police and victim was taken to District Women Hospital, Etah where she was medically examined on 25.08.2019 at 6:00 a.m. Her condition was serious. In medical examination report, her hymen was found fresh torn and doctor has noted following injuries, which were found on her private :
"Injury on genital tract:
Rt labia majora and Rt vaginal wall-Laceration seen. Muscle deep 2x1 cm. Lt side vagina-Laceration-3x1 cm.
Colour-Red colour both laceration caused by both hard and blunt object. Tender on touch. Fresh vaginal bleeding present and clot seen in genital tract."
4- Considering the critical condition of victim she was referred to Medical College, Aligarh and she was discharged after five days of her treatment, but again her condition was being deteriorated, then she again got admitted in Medical College, Agra from 31.08.2019 to 09.09.2019, where she had undergone surgery for her injuries and her treatment is going on.
5- Thereafter, her statements under Sections 161 and 164 Cr.P.C. were recorded, in which also she alleging inter-alia made allegation of rape against two unknown persons. It is the case of prosecution that on 29.08.2019 police received information from the informer that the accused persons who had committed rape on the little child are about to go towards Fariya Marg in the night. Acting on the said information police apprehended Arif, Kalua (applicant) and Israr and they have confessed their guilt stating that they have committed rape on the aforesaid victim. They also disclosed that they use to commit theft of cattle's. On the day of incident, they came towards village Nagla Imaliya where they saw that one girl was sleeping on cot in the courtyard of her house. They could not control themselves and lifted her out of there. She was taken towards temple, where they committed rape on her.
6- It is argued by learned counsel for the applicant that applicant has been falsely implicated in this case. The applicant is neither named in the F.I.R. nor in the statements of victim under Section 161 or 164 Cr.P.C. On 29.08.2019, police arrested the applicant and other two accused persons, namely, Arif and Israr and recorded their false confessional statement. It is next submitted that no identification was done in the matter. Applicant has no criminal history and he is languishing in jail since 29.08.2019. Lastly, it is submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
7- Per contra, learned A.G.A. vehemently opposed the prayer for bail of the applicant by contending that complicity of the applicant came into light in the statements of Mahavir and Vinesh, thereafter applicant and co-accused Arif and Israr were apprehended by the police and they during interrogation confessed their guilt. As per medical examination report, condition of victim was very critical. The applicant and other co-accused committed gang rape on her in a barbarian manner. There are several injuries on the private part of the victim. The applicant has a criminal history of one case being Case Crime No. 251 of 2019, under Section 2/3 of Gangster Act, P.S. Awagarh, District-Etah. Offence is heinous in nature, therefore, applicant is not entitled to be released on bail.
8- After having heard learned counsel for the applicant as well as learned A.G.A., I find that the victim is aged about 10 years and she has been raped by more than one accused person, who have acted in furtherance of a common intention. The offence under Section 376 DB I.P.C. is punishable with imprisonment for life. Though, the learned counsel for the applicant submits that the applicant has no criminal history, whereas learned A.G.A. pointed out that the applicant has a criminal history of one case, as mentioned above. I also do not find any material on record to presume that the applicant has been falsely implicated in this case. Offence is heinous in nature. Apart from above, having considered the facts that rape is the most hated, morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. It shaken the spirit and very core of her life. Rape leaves a permanent scar on the life of the victim and further considering the injuries on the private part of the victim as mentioned above, gravity involved in the matter, there is no good ground to release the applicant on bail.
9- Accordingly, the application for bail of applicant is rejected.
10- Office is directed to send the copy of this order to the informant within two weeks.
Order Date :- 16.8.2021 Sunil Kr. Gupta Digitally signed by Justice Sanjay Kumar Singh Date: 2021.08.19 18:06:09 IST Reason: Document Owner Location: High Court of Judicature at Allahabad