Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15010 of 2021 Applicant :- Mahendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raghuvansh Misra,Amir Khan Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Supplementary affidavit has been filed today which is taken on record.
Notice was issued to the opposite party no.2 vide order dated 25.3.2021. As per the office report dated 24.06.2021, a report dated 21.06.2021 of C.J.M. concerned has been received stating therein that notice has been served on the opposite party no.2.
From 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 Raghuvansh Misra, learned counsel for the applicant and Sri Ankit Srivastava, learned brief holder 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 Mahendra seeking enlargement on bail during trial in connection with Case Crime No. 160 of 2020, under Sections 376-D, 452, 506 IPC and Section 4(1) of POCSO Act, registered at P.S. Narora, District Bulandshahr.
Learned counsel for the applicant argued that the First Information Report was lodged under Sections 354, 354-kha, 452, 506 IPC by the mother of the victim on an information received from her daughter who is the victim in the present case. It is argued that subsequently the victim in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. has improved the version of the prosecution as per the First Information Report and has levelled the allegation of rape against the applicant. It is argued that the same is an afterthought just in order to falsely implicate and harass the applicant. It is further argued that the doctor who conducted the medical examination report did not find any evidence of any sexual assault and as such could not give any specific opinion about it. It is argued that although the prosecution is relying on a certificate issued by the In-charge Principal of College, copy of which is annexed as annexure 4 in which the date of birth of the victim has been stated to be 15.05.2007 but the said certificate does not qualify with the requirements of a document as required for ascertaining the age as per the Juvenile Justice Act. It is argued that C.M.O. concerned has given a certificate dated 01.10.2020, copy of which is annexed at page 58 in which he has opined the age of the victim as 16-17 years and as such she is a major. It is argued that looking to the facts of the case particularly the fact that the allegation of rape is conspicuously missing in the First Information Report registered by the mother of the victim stating therein that the same is being registered on the information received from her daughter who is the victim and also the fact that the incident in question is alleged to have taken place on 09.09.2020 whereas the First Information Report has been registered on 30.09.2020 which is after a period of about 21 days for which there is no plausible explanation the implication of the applicant in the present case is false. Further, learned counsel has placed the medical examination report of the victim and has argued that the doctor conducting the same did not find any injury on her private parts and as such a reasonable conclusion can be drawn that there was no sexual assault on the victim. He further argued that the applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 04.10.2020.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the first informant in her statement recorded under Section 161 Cr.P.C. has stated that due to fear she did not get the First Information Report registered earlier but after gathering courage she proceeded to lodge the same and as such the delay is explained well by her. It is argued that on the basis of the said school certificate, the age of the victim at the time of the incident was aged about 13 years and as such she was a minor. It is further argued that the medical examination of the victim was conducted and the doctor has specifically mentioned that the incident was 23 days old and as such the doctor finding any injury on the private parts of the victim is impossible. It is argued that the victim has named the applicant in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. as that of committing rape upon her. 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.
I have heard learned counsels for the parties and perusing the record, it is apparent that the victim has in her statement under Section 161 Cr.P.C. and 164 Cr.P.C. stated about rape being committed upon her by the applicant. The medical examination was conducted after 23 days, there are two documents regarding the age of the victim girl, the document of the school states her age to be 13 years. 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 :- 28.7.2021 M. ARIF (Samit Gopal, J.)