Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29598 of 2021 Applicant :- Rajesh Kumar Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Santosh Kumar Yadav Counsel for Opposite Party :- G.A.,Kumar Shashwat,Rajesh Kumar Srivastava
Hon'ble Samit Gopal,J.
Heard Sri Santosh Kumar Yadav, learned counsel for the applicant, Sri Kumar Shashwat, learned counsel for the opposite party no.2 and Sri B.B. Upadhyay, 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 Rajesh Kumar Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 155 of 2021, under Sections 376-D, 506 IPC and Section 5/6 POCSO Act, registered at P.S. Rasra, District Ballia.
The prosecution case as per the First Information Report lodged on 01.06.2021 by Satyendra Verma the father of the prosecutrix naming the applicant and Akash Yadav @ Chotai as the accused therein is that his daughter aged about 16 years went to ease herself on 29.05.2021 at about 08:00 pm but did not return back till late night after which they started searching for her and continued search till morning. On 30.05.2021 at about 06:00 am he received an information that his daughter is sitting in a semi constructed house in a Mahatvaar Chhatti and is crying on which he with his family members went there and found his daughter and his daughter told them that Rajesh Yadav (the present applicant) and Akash Yadav @ Chotai have raped her. They have threatened her that if she informs anyone about it she will be murdered. He states that due to fear of his repute he did not immediately lodge a First Information Report but after threats of the accused persons he is now lodging the First Information Report.
Learned counsel for the applicant argued that the prosecution case is false and concoction. Although in the First Information Report two persons are named as accused being Rajesh Yadav and Akash Yadav @ Chotai but in the statement of the prosecutrix under Section 161 Cr.P.C. she names Rajesh and Vikas @ Chotkai as the accused persons who have raped her. It is argued that identically in her statement recorded under Section 164 Cr.P.C. she names the said two persons as named in her statement under Section 161 Cr.P.C.
Learned counsel for the applicant has further argued that Vikas @ Chotkai has not been made as an accused in the First Information Report. He is not named as an accused in spite of the fact that the same has been lodged after informing the first informant and his family members about the accused persons in the incident by the prosecutrix. Learned counsel has further argued that the medical examination report of the prosecutrix does not support the prosecution case. The doctor has opined that no recent sexual activity is seen. It is argued that in the statement under Section 164 Cr.P.c. apart from the said two accused persons the prosecutrix states about 4-5 other accused persons in the present incident and have also committed rape upon her after which she was even administered intravenous medicine. It is argued that no such evidence of any administration of medicine is mentioned in the medical examination report.
Learned counsel has further argued that the prosecutrix is a major and she is enrolled as voter and has casted vote in the recent Grampradhan Elections of State and even as per the Aadhar Card the date of birth is 12.04.2001 and as such she is aged about 20 years. It is further argued that the doctor has opined her age to be between 15-17 years and by giving benefit by variation of two years, she would be a major. It is argued that the applicant has been falsely implicated in the present case as the father of the victim namely Satyendra Kumar Varma had taken Rs. 15,000/- from the friend of the applicant for agricultural purposes and 25.08.2020 when the applicant and his friend demanded back the said money, the same was denied to be returned and the applicant has been falsely implicated in the present case, para 16 of the affidavit in support of the bail application has been placed to buttress the said argument. He further argued that the applicant has no criminal history as stated in para 28 of the affidavit and is in jail since 03.06.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the first Information Report, in the statements under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix and there is an allegation of rape against him. It is argued that the prosecutrix is a minor as per the opinion of the doctor, the doctor himself has given a variation of two years of age while opining the age of her. It is further argued that the date of birth is 02.08.2006 and as such she was aged about 15 years at the time of incident which also corroborates with the prosecution case and the opinion of the doctor who has ascertained her age. The present case is a case of gang rape and the applicant is involved in the present case. 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.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is named in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. The age opined by the doctor of the prosecutrix is being 15-17 years. There are allegations of rape against the applicant. The present case is a case of gang rape. 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 :- 7.10.2021 M. ARIF (Samit Gopal, J.)