Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31706 of 2021 Applicant :- Kaushindra Opposite Party :- State of U.P.
Counsel for Applicant :- Ram Raj Pandey Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Sri Rajnish Upadhyay, Advocate appearing on behalf the first informant is permitted to file his vakalatnama by tomorrow i.e. on 23.09.2021 in the office.
The office shall trace out the same, place it on record and shall make a note in the order sheet regarding the same.
Heard Sri Ram Raj Pandey, learned counsel for the applicant, Sri Rajnish Upadhyay, learned counsel for the first informant, Sri Pankaj Mishra, 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-Kaushindra, seeking enlargement on bail during trial in connection with Case Crime No.171 of 2021, under Sections 323, 452, 354, 376 I.P.C. and 3/4 POCSO Act and Section 3(2)5 SC/ST Act, registered at Police Station Binauli, District Baghpat.
Learned counsel for the applicant argued that the prosecution case as per FIR although names the applicant only as the accused is false and concoction. The FIR was registered on 14.05.2021 by Smt. Suman, the elder sister of the prosecutrix regarding the incident dated 10.05.2021 under Section 452, 323, 354 IPC. Subsequently the statement of the victim was recorded under Section 161 Cr.P.C. and 164 Cr.P.C. wherein she has levelled allegation against the applicant of troubling her and then committing rape upon her, the same is an afterthought. There is no explanation coming forward regarding delay in lodging of the FIR. It is further argued that medical evidence does not corroborate the prosecution story as the doctor has not found any injury on the body of the deceased. The prosecutrix when was taken to the doctor has stated that the applicant has established physical relationship with her since the last six months on threat of pistol but the same is missing in the FIR, in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. The applicant is the son of the nanad of the first informant and there was and attempt to falsely implicate the applicant with malafide intention, as such the prosecution story is not consistent and there has been different versions which are in the FIR, in statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. before the Court. The entire prosecution case is a falsity and the applicant is not involved in the present case. There had been fight between the husband of the first informant and the applicant on 13.05.2021 regarding which the police had challaned the applicant under Section 107/116 Cr.P.C. It has also been pointed out that the applicant is not having any criminal history as stated in para 26 of the affidavit and is in jail since 01.06.2021.
Per contra learned counsel for the first informant and learned counsel for the State vehemently opposed the prayer for bail and argued that the prosecutrix is aged about 17 years as her date of birth is 10.04.2004 which is mentioned in high school marksheet, copy of the same is annexed as Annexure No.5 to the affidavit. In statement of the prosecutrix recorded under Section 161 Cr.P.C. and 164 Cr.P.C., there is an allegation of rape being committed by the applicant. There is no possibility of false implication of the applicant as he was the son of nanad of the first informant, as such was close relative. The applicant is involved in the present case and there are allegations against him.
After hearing the counsel for the parties and perusing the record, it is apparent that the prosecutrix is a minor girl aged about 17 years as per her high school marksheet. There is an allegation of rape against the applicant in the statement of the prosecutrix recorded under Section 161 Cr.P.C. and 164 Cr.P.C.
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.
(Samit Gopal, J.) Order Date :- 22.9.2021 Gaurav