Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18718 of 2021 Applicant :- Nitish Opposite Party :- State of U.P.
Counsel for Applicant :- M.C. Singh,Dushyant Singh,Hemant Sharma,Saurabh Kesarwani Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Saurabh Kesarwani, learned counsel for the applicant, Sri Anand Sagar Dubey, learned A.G.A. 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 Nitish, seeking enlargement on bail during trial in connection with Case Crime No. 552 of 2020, under Sections 323, 376(3), 452, 504, 506 I.P.C. and 3/4 POCSO Act, registered at P.S. Jahangirabad, District Bulandshahr.
The prosecution case as per the F.I.R. lodged by Smt. Poonam Devi the mother of the prosecutrix, is that she along with her husband Manoj had gone to the house of her neighbour on 15.11.2020 and at that time her daughter who is the prosecutrix along with two younger brothers were in the house. When she came back at about 11.45 P.M. the prosecutrix was found to be in unconscious state who later on told her that the applicant came to her house, assaulted her and committed rape upon her. She then went to the house of the applicant along with her husband who were then assaulted by the applicant and the other co-accused persons Vinit and Kuldeep. The F.I.R. was registered on 16.11.2020 at about 21:57 hours under Sections 323, 452, 376 I.P.C.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the first informant in her statement recorded under Section 161 Cr.P.C. has stated that her daughter aged about 16 years was alone in the house along with her two younger brothers in the night of 15.11.2020, the applicant came there and assaulted her and raped her. When she and her husband came back to the house, the applicant was committing forcible illegal act on her daughter and on seeing them he ran away. Her daughter told her that the applicant has committed illegal act after which she went to the house of the applicant to complain about it, where the applicant and the said two co-accused persons Vinit and Kuldeep assaulted her and her husband Manoj.
Learned counsel has placed the statement of the prosecutrix recorded under Section 161 Cr.P.C., which is annexure no. 3 to the affidavit, before the Court and has argued that the prosecutrix has stated her age to be about 16 years and she has studied up to Class-8th. Further she has stated that the applicant who is the son of Village Pradhan, was her friend and they used to talk to each other on phone who came in the night of 15.11.2020 and committed wrong act on her and after seeing her parents he ran away. After which her parents had gone to the house of the applicant to complain about the incident wherein they were beaten by the applicant and the co-accused Vinit and Kuldeep. She has given marks sheet of Class-5th to the Investigating Officer at the time when her statement under Section 161 Cr.P.C. was recorded. Reference of the same is therein. It is argued that subsequently in her statement recorded under Section 164 Cr.P.C., the prosecutrix has stated that she has passed Class-6th and she does not remember her date of birth. On 15.11.2020 at about 11.00 P.M. there was some accident on which her parents got annoyed with the applicant and got the present F.I.R. registered. There was no wrong act done on her. In the morning there was a compromise entered into between them and she does not want any action to be taken.
Learned counsel has further placed the medical examination of the prosecutrix and has argued that when she was taken to the doctor for medical examination, she has stated that she only wants to her external examination to be done and not her internal examination, but her mother Smt. Poonam Devi sates to the doctor that she wants her internal examination to be done but not her external examination to be done. It is argued that the prosecutrix has stated to the doctor that she went with the applicant on 15.11.2020 out of her own sweet will as she likes him and the applicant did not commit any forceful act on her. She has given her history as being beaten by her family members around two days back. She was medically examined and the doctor has found four contusion on her body. She was advised X-ray for expert opinion but no X-ray report has seen the light of the day. Even there is no document to show her age for which it was advised by the doctor conducting her medical examination. It is argued that although the police submitted charge sheet against the applicant and the co-accused Vinit and Kuldeep, under Sections 323, 504, 506 I.P.C. only but the Magistrate on 21.11.2021 took cognizance upon the same against the applicant for the offences under Sections 323, 506, 452, 504, 376(3) I.P.C. and 3/4 POCSO Act, and against the co-
accused Vinit and Kuldeep for the offences under Sections 323, 504, 506 I.P.C. Para-23 of the affidavit has been placed for the same.
It is argued that the entire prosecution case is a falsity and a concoction. The prosecutrix has not remained consistent throughout. The first informant states of beating by the applicant and the co-accused persons to her and her husband but the same is false. Even in the F.I.R. there is an allegation that the prosecutrix was found unconscious in the house but in her statement recorded under Section 161 Cr.P.C. she does not say so and states that when she reached her house, the applicant was committing forcible wrong act on the prosecutrix. It is argued that as such implication of the applicant is false and with malafide intentions. It is argued that the applicant is having criminal history of one case in which he has been acquitted of the charges levelled against him.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the applicant is named in the F.I.R. and in the statement recorded under Section 161 Cr.P.C. of the prosecutrix and there are allegations of his committing rape upon the prosecutrix. Further it is argued that the prosecutrix is a minor girl aged about 15 years and 9 months as per school records wherein her date of birth is mentioned as 08.2.2005. The said certificate was given by the prosecutrix herself to the police while she was being interrogated under Section 161 Cr.P.C. It is argued that there is an allegation of the applicant assaulting the prosecutrix and then committing rape upon her and there are injuries on her body which have been found by the doctor conducting her medical examination. It is argued that the prosecutrix is a minor and the applicant is alleged to have committed rape upon her.
After having heard learned counsels for the parties and perusing the record, it is evident that the prosecutrix is a minor girl aged about 15 years and 9 months. The F.I.R. and the statement recorded under Section 161 Cr.P.C. of the prosecutrix state of the applicant committing rape upon her, although in the statement recorded under Section 164 Cr.P.C. she does not state of any such act done by the applicant but the statement under Section 164 Cr.P.C. is for contradiction or corroboration of the witness only. The factum of rape is mentioned in the F.I.R. and in the statement recorded under Section 161 Cr.P.C. of the prosecutrix who is a minor girl aged about 15 years and 9 months. She has received bodily injuries which corroborates with the prosecution case.
Looking to fact and circumstances of the case, nature of evidence and gravity of offence and the prosecutrix is a minor girl, I do not find it a fit case to release the applicant on bail.
Accordingly, 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 :- 22.9.2021 Naresh (Samit Gopal,J.)