Heard Sri Kamlesh Kumar Dwivedi, learned counsel for the applicant, Sri Awdhesh Singh, learned Advocate holding brief of Sri Ramesh Chandra Gupta 2, learned counsel for the first informant and Sri Ashwini Prakash Tripathi, learned A.G.A. for the State.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Lotan Alias Veer Prakash, seeking enlargement on bail involved in Complaint Case No. 17 of 2018, under Section 363, 376 I.P.C. & 3/4 POCSO Act, registered at Police Station Kotwali, District Fatehpur.
Learned counsel for the applicant argued that the present case has been initiated on the basis of an application moved under Section 156 (3) Cr.P.C. dated 19.01.2018 which was treated as a complaint wherein the statement of the complainant was recorded under Section 200 Cr.P.C. and that of the victim was recorded as P.W.-1 under Section 202 Cr.P.C. and her mother was examined as P.W.-2 and her statement was also recorded under Section 202 Cr.P.C. after which the trial court summoned the applicant under Section 363, 376 I.P.C. and Section 3/4 of the POCSO Act vide order dated 07.12.2018. It is argued that the statement of the victim recorded under Section 202 Cr.P.C., will go to show that she had travelled with the applicant and remained with him from 05.01.2018 up to 08.01.2018 without any resistance whatsoever. It is argued that dispute arose between the parties due to death of bua of the victim by a tractor of the father of the applicant for which some undue demand of money was raised by them for settling the dispute and on a refusal, the present case has been instituted belatedly without any plausible explanation. It is further argued that the applicant was not present at the place of occurrence and at the village but was present in Bombay in the unit where diamonds are manufactured for which a CCTV footage of 05.01.2018 showing the presence of the applicant has been placed before the Court. The said averment has been made in paragraph 10 pf the affidavit and the photographs of the CCTV footage has been annexed as Annexure-6 to the affidavit. It is argued that the applicant has no criminal history as stated in para 25 and is in jail since 09.08.2019.
Per contra learned counsel for the first informant and learned brief holder for the State vehemently opposed the prayer for bail. Learned counsel for the first informant has placed Annexure- CA-1 to the counter affidavit and has argued that the victim was a minor at the time of occurrence as her date of birth in the High School mark-sheet annexed therein is shown as 08.06.2004 and as such she was about 15 years of age at the time and date of occurrence. It is argued that the victim was a minor. It is further argued that alibi as is being claimed is a false alibi. It is next argued that the motive as is being stated to be the accident and the demand of money thereupon is also irrelevant as the said death was in itself an incident but could not be very well agitated and there would have been no use of initiating the present case by exposing his daughter. It is argued that since the victim was a minor aged about 15 years and has stated about rape being committed by the applicant only, the present bail application be rejected.
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 :- 21.1.2021 AS Rathore (Samit Gopal,J.)