Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29200 of 2021 Applicant :- Rahul Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vidit Narayan Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Vidit Narayan Mishra, learned counsel for the applicant, Sri B.B. Upadhyay, 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 Rahul, seeking enlargement on bail during trial in connection with Case Crime No. 169 of 2018, under Section 376-AB I.P.C. and Section 3/4 POCSO Act, registered at P.S. Rabupura, District Gautam Budh Nagar.
The prosecution case as per the F.I.R. lodged on 30.6.2018 at about 15:35 hours, under Section 376-AB I.P.C. and Section 3/4 POCSO Act, by Shreepal naming the applicant as an accused, is that on 29.6.2018 he along with his family members had gone to attend the wedding at a relative's place. His elder brother Veerpal had also gone along with his daughter aged about 09 years. In the night everyone was busy in the festivity and at about 3.00 A.M. finding way, his niece who is the prosecutrix and his son were taken away by Rahul the present applicant in a four wheeler vehicle which was standing outside on the pretext of making them sleep. In the morning at about 4.00 A.M. after bidai, the relatives were having their morning tea after which he tried to get the children wake up but they did not wake up and were in a semi-conscious state. His wife came there and saw that his niece was bleeding. After which his son was asked who then told them that Rahul had taken them while they were sleeping in a vehicle, gagged their mouth and did the wrong act with the prosecutrix and then made them to sleep on the roof and went away. The F.I.R. was thus lodged.
Learned counsel for the applicant argued that although the prosecutrix is a girl aged about 9 years and the doctor conducting her medical examination found some blood in her private parts but the entire story as narrated implicating the applicant is false and a concocted version. It is argued that the prosecutrix was produced before the trial court as P.W.-1 and her statement was recorded on 01.8.2019 wherein she although stated about the rape being committed upon her but stated that the applicant did not commit the said act and the same was committed by some other person whom she could not recognize as she did not see his face. It is argued that the implication of the applicant is false and the story of F.I.R. is a concoction. It is argued that the applicant has no criminal history as stated in para-15 of the affidavit in support of bail application and is in jail since 5.7.2018.
Per contra, learned State counsel opposed the prayer for bail and argued that although the prosecutrix has given the said version but she has not been declared hostile by the trial court and was crossed examined by the counsel for the accused. It is argued that the prosecutrix is aged about 09 years and the medical examination supports the prosecution case. The applicant is named in the F.I.R., in the statements recorded under Sections 161 and 164 Cr.P.C. of the prosecutrix. It is argued that thus the applicant is involved in the present case.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant is named in the F.I.R., in the statements recorded under Sections 161 and 164 Cr.P.C. of the prosecutrix and the medical examination corroborates the prosecution case. The trial is under progress and the release of the applicant at this stage may have an adverse effect on the trial.
Looking to fact and circumstances of the case, nature of evidence and gravity of offence, I do not find it a fit case to release the applicant on bail.
Accordingly, the bail application is rejected.
However, since the applicant is in jail from 05.7.2018, it is directed that the trial of the aforesaid case pending before the concerned trial court be concluded, as expeditiously as possible, strictly in accordance with Section 309 Cr.P.C. and in view of the principles as has been laid down by the Apex Court in the cases of Shailendra Kumar Vs. State of Bihar and others : (2002) 1 SCC 655, Vinod Kumar Vs. State of Punjab : (2015) 3 SCC 220 and Hussain and another Vs. Union of India : (2017) 5 SCC 702, subject to any legal impediment.
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 :- 6.10.2021 Naresh