Reserved on:17.12.2020
Delivered on: 6.1.2021
Court No. - 29
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25354 of 2020 Applicant :- Rakesh Kumar Yadav Opposite Party :- State of U.P.
Counsel for Applicant :- Sharad Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Pankaj Naqvi,J.
Heard Sri Sharad Kumar Srivastava, learned counsel for applicant, learned A.G.A. and perused the records.
This is a second bail application on behalf of the applicant in Case Crime no. 8 of 2019, under Sections 363, 343, 302, 201, 376-D IPC and Section 3/4 of POCSO Act, P.S. Bisanda, District Banda, as the first came to be rejected on 17.12.2019.
Learned counsel for the applicant submits that principal accused Lalu @ Krishna Kumar has been enlarged on bail by this Court in Crl. Misc. Bail Application No. 56782 of 2019 on 3.2.2020, as also no recovery has been effected from the applicant.
Learned A.G.A opposed the submission.
The first rejection of bail is extracted hereunder: -
"Heard Sri Devi Deen Yadav, learned counsel for the applicant and Sri S.P.S. Chauhan, the learned Brief Holder in respect of the bail of applicant in Case Crime No.08/2019, under Sections 363/343/302/201/376-D IPC and 3/4 of the POCSO Act, P.S. Bisanda, Banda.
The case of prosecution is that the daughter of the victim went missing on 5.1.2019 at about 6 PM, while she was at the fields, footwear and dupatta of the victim were found at the fields. On 12.1.2019, nephew of the informant, i.e., Lallu and Kanchan conveyed to the informant that the body of the victim is lying in a nearby well. Thereafter, information was given to the police, inquest and autopsy conducted. The autopsy indicated the cause of death by asphyxia.
During investigation, on 19.1.2019 statement of one Balbir was recorded who stated that he saw the victim on 5.1.2019 in the nearby fields, while accused Lallu was hiding himself in a nearby arahar fields but as the said accused used to keep a pistol with him, he on account of fear, did not disclose this fact to anyone. Accused Lallu was arrested on 20.1.2019. He gave a detailed confessional statement giving an elaborate and detailed version as to how he along with co- accused Rakesh Kumar Yadav, Kanchan and Neeraj picked the victim from the fields when she was all alone taken to the room of Neeraj where she was ravished by all the 4 accused. He further stated that with a view to conceal their involvement in the commission of the offence, accused Lallu and Kanchan were made to visit the informant same day, while leaving the victim in the hostile custody of co-accused Rakesh Kumar Yadav and Neeraj. Once accused Lallu and Kanchan returned to their village, all the 4 accused continued with the sexual assault. On 8.1.2019, they again sexually assaulted the victim and after strangulating her, threw her body in a nearby well.
Learned counsel for the petitioner submits that there are no eye-witness to the occurrence, name of the applicant surfaced in the confessional statement of co- accused Lallu as also the fact that co-accused Kanchan and Neeraj stand enlarged on bail in Criminal Misc. Bail Application Nos.50175 & 53865, both of 2019 on 18.11.2019, applicant is in jail since 21.1.2019, he be enlarged on bail.
The learned AGA opposed the bail primarily on the ground that after the child victim was sexually assaulted, she was put to death as is evident from the autopsy and the F.S.L. report also indicates presence of semen and blood in the undergarments and vaginal smear of the victim which went unnoticed in Criminal Misc. Bail Application No.53865/2019 of co-accused Neeraj.
The offence alleged is very heinous involving gang rape of a child victim, complicity of the applicant is meticulously made out along with other co-accused in the detailed confessional statement of co-accused Lallu. Reliability and admissibility of confessional statement, cannot be considered at the stage of bail. This Court at this stage has no reason to hold false implication of the applicant as the Superintendent of Police concerned was mandated by the Writ Court on 25.3.2019 to look into the matter personally and monitor the same. Moreover, the applicant is not alleging any previous animosity against co-accused Lallu.
Considering the facts and circumstances of the case as also the contentions noted above, am not inclined to enlarge the applicant on bail.
The bail application is rejected.
However, no part of this order shall prejudice either of the parties at the stage of trial.
Order Date :- 17.12.2019"
This Court primarily rejected the bail of the applicant on the ground that FSL report indicated presence of semen on the undergarments of the child victim, which went completely unnoticed in the order of bail of co-accused Lalu @ Krishna Kumar. The prosecution does not allege any involvement of a weapon in putting the child victim to death as it was a case of death by strangulation, where ordinarily no recovery of any incriminating article is involved.
No other plea is urged.
The second bail is rejected as no new good ground is made out.
Order Date :- 6.1.2021 N.S.Rathour