Heard Sri Bal Ram Bind, learned counsel for the applicant and Sri Akhilesh Kumar Tripathi, 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 Sonu Bind @ Kalika Prasad Bind, seeking enlargement on bail during trial in connection with Case Crime No. 0124 of 2020, under Sections 376-D, 504, 506 IPC and Section 3/4 POCSO Act, registered at P.S. Sarpataha, District Jaunpur.
Learned counsel for the applicant argued that although the applicant is named in the First Information Report but his naming is a falsity. It is argued that three versions of the prosecution case being the First Information Report, statement under Section 161 Cr.P.C. and the statement under Section 164 Cr.P.C. of the victim give three different versions. In the First Information Report, there is name of four accused persons including the applicant but allegation is upon the applicant only of having committing rape on the victim girl. Subsequently in the statement under Section 161 Cr.P.C. of the victim on a specific question by the Investigating Officer she has stated that the applicant and co-accused Mintoo Bind committed rape on her. Later on, in her statement under Section 164 Cr.P.C. she has stated that four accused persons namely Sonu Bind (the present applicant), Mintoo @ Dharmpal Bind, Rakesh Prajapati and Kinku Bind have committed rape upon her. It is argued that in so far as the factum of rape is concerned, the prosecution is not consistent. It is further argued that the doctor conducting the medical examination of the victim has opined that there is no evidence of recent forceful sexual activity seen. It is further argued that the Chief Medical Officer has opined that the age of the victim is 18 years in his certificate dated 04.08.2020, copy of which is annexed as annexure 7 to the affidavit. It is further argued that co-accused Mintoo @ Dharmpal Bind and Kinku Bind have been granted bail by co-ordinate Bench of this Court vide order dated 29.06.2021 passed in Crl. Misc. Bail Application No. 3829 of 2021 (Mintu @ Dharmpal Bind and another Vs. State of U.P. and another), copy of the order is annexed as annexure R.A.1 to the rejoinder affidavit. He further argued that the applicant has no criminal history as stated in para 18 of the affidavit and is in jail since 28.07.2020.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the victim girl is a minor as is evident from her High School Mark-sheet, copy of which is annexed as annexure 9 to the affidavit in which her date of birth is mentioned as 12.08.2004 and as such she was aged about 15 years and 11 months at the time of incident. It is argued that in so far as the applicant is concerned, his name is consistent throughout being in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. of the victim girl and he has been alleged to have committed rape upon her. It is argued that the prosecution case is consistent in so far as the applicant is concerned and the victim girl is a minor as per High School Mark-sheet. Even her consent if presumed, cannot be considered and taken at the face of it as she is a minor. It is argued that the applicant is involved in the present case and as such the prayer for bail of the applicant be rejected.
I have heard learned counsel for the parties and have gone through the records, it is evident that the victim girl is a minor girl aged about 15 years & 11 months as per High School Mark-sheet. She has specifically stated that the applicant committing rape upon her. The name of the applicant finds in the First Information Report, statements under Section 161 Cr.P.C. and 164 Cr.P.C. of the victim girl and the role of committing rape on the victim girl has been stated therein. In so far as the bail of co-accused persons is concerned, the same may have a persuasive value but is not binding upon the Court and even the said co-accused persons were named in the statement under Section 164 Cr.P.C. to have committed rape upon the victim girl but their name did not find as the persons committing rape upon the victim under Section 161 Cr.P.C. It 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 :- 24.8.2021 M. ARIF (Samit Gopal, J.)