Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17846 of 2021 Applicant :- Sadab Opposite Party :- State of U.P.
Counsel for Applicant :- Akhilesh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Notice was issued to the opposite party no.2 vide order dated 24.06.2021. As per the office report dated 27.09.2021, a report dated 09.09.2021 of C.J.M. concerned has been received stating therein that notice has been served on the opposite party no.2.
The 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 Akhilesh Kumar Mishra, learned counsel for the applicant, Sri S.B. Maurya, 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 Sadab, seeking enlargement on bail during trial in connection with Case Crime No. 380 of 2020, under Sections 376(3), 506 IPC and Section 3/4(2) of the POCSO Act, registered at P.S. Kiratpur, District Bijnor.
The prosecution version as per the First Information Report lodged on 22.12.2020 under Section 376 IPC and Section 3/4 POCSO Act by Smt. Kashima the mother of the prosecutrix is that her daughter aged about 14 years went from the house to bring milk wherein Sadab the applicant residing in the same mohallah and the same lane gagged her mouth and forcibly pulled her in his house and committed rape upon her. Her daughter did reach back after which she was searched and she was found in a disturbed condition when she came back to the house and then she informed about the incident, the First Information Report is thus lodged.
Learned counsel for the applicant argued that the implication of the applicant is false and with malafide intentions. The medical examination does not support the prosecution version. The prosecutrix in her statement under Section 161 Cr.P.C. although has stated that the applicant had committed rape upon her but has further stated that he scratched her face but there is no injury as such on her external body which has been specifically noted by the doctor.
It is argued that the prosecutrix was habitual to sexual intercourse as the doctor found her hymen was old torn and healed. It is argued that even the prosecutrix has in her statement recorded under Section 164 Cr.P.C. stated about the factum of rape but the same is false and the reading of the said statement would undoubtedly go to show that she was a consenting party as there appears to be no resistance. The applicant is in jail since 22.12.2020.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the doctor has opined the age of the prosecutrix as that of 12 years, in the first Information Report she is stated to be about 14 years, in the school records is mentioned the date of birth is 25.09.2006 and the present incident is of 20.12.2020 and as such she was a minor. It is argued that the applicant is named in the First Information Report and there are allegations of rape against him in the first Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C.
After having heard learned counsels for the parties and perusing the records, it is evident that the prosecutrix is minor, the applicant is named in the First Information Report, there are allegations in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. 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 :- 6.10.2021 / M. ARIF
(Samit Gopal, J.)