Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38418 of 2020 Applicant :- Tinku Opposite Party :- State of U.P. and Another Counsel for Applicant :- Zafeer Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Zafeer Ahmad, learned counsel for the applicant and Shri Udit Chandra, learned A.G.A. who has been allocated this case to represent the State. Perused the record.
Today in the Court Shri Chandra has filed two affidavits, one counter affidavit swered by Shri Nishant Kant Rathi, Police Inspector, P.S.-Gajraula, District Amroha and second Crl Misc. Exemption Application along with affidavit of Mrs Suniti, presently posted as S.P. Amroha, requesting the court to exempt the personal presence of the deponent. Both the affidavits are taken on record.
Learned counsel for the applicant submits that he wants to argue the case on merits and as such, both the counsels representing applicant and the State are present and the Court proposes to decide the case after hearing the counsels for rival parties.
Before coming to the merit of the case, there is a letter of CJM, Amroha dated 15.12.2020 whereby notices were served upon opposite party no.2 Mohan Singh, the informant of the case, who reportedly died on 17.10.2020. The Death Certificate issued by the CMO, Amroha is annexed with the said report of the C.J.M., Amroha. Hence, there is no counter affidavit on his behalf.
Submission made by the counsel that the applicant Tinku is facing incarceration since 8.9.2020 in connection with Case Crime No.115 of 2020, u/s 376-D, 305 I.P.C. and Section 5/6 of POCSO Act, P.S.-Gajraula, District-Amroha and is submitted that the applicant be released on bail during trial.
At the outset learned counsel for the applicant submits that the very genesis of the case seems to be a doubtful proposition on account that for the incident of 26.9.2019 the informant Mohan Singh (father of the victim) has lodged the present F.I.R. through 156 (3) application after an inordinate delay of 14 days on 10.12.2019 and eventually the present F.I.R. has seen the light of the day after unbridgeable gap of two and half months on 04.03.2020. This delay receives significance when Mohan Singh himself, soon after the incident, has given a report by means of a GD entry No.053 dated 26.9.2019 at 21.17 hours to the police station Gajraula, mentioning therein that his daughter Miss 'X' aged about 13 years committed suicide by hanging herself. It has been submitted that the applicant, though he is permanent resident of Amroha but on 26.9.2019 he and his younger daughter Miss 'X' were at the residence. At about 10.00 in the day he went outside the house leaving behind his daughter. Around 5.00 in the evening he came to know that she has committed suicide by hanging herself. It was requested the police to take a suitable action in this regard. On this it has been argued by learned counsel for the applicant that at the earliest point of time there was no name of the applicant in commission of the offence. The informant after gathering the information from various quarters has tailored an imaginary story by filing a 156(3) application dated 10.12.2019 (say about 14 days after the incident).
As per the text of the F.I.R., the prosecution story in short is, that the applicant is one of the four named accused persons. The applicant went to have a haircut, leaving behind his wife Usha Devi and his minor daughter (the victim). His wife went to her neighbourhood and his daughter Miss 'X' aged about 13 years was all alone. Taking the advantage of her loneliness with the intention to ravish her, all the four named accused persons barged in her house and wanted to take away. When she resisted, then all of them killed her by surrounding her neck. After seeing that Tulsa Devi, Gaurav and Dayawati are fast approaching towards them, all of the named accused persons fled away. The informant too came back to home and has seen his daughter hanging. The named accused persons are notorious and the police has not recorded the F.I.R., left with no option he has taken the recourse of 156(3) Cr.P.C.
It has been further contended by learned counsel for the applicant that after receiving the information in GD No.053 on 26.9.2019 the inquest of the deceased Miss 'X' was prepared and as per the inquest report it was unequivocally suggested that it seems that she has committed suicide, however, postmortem is required to be done. Thereafter, on the same day the SHO, Gajraula, Amroha has requested the CMO for making an arrangement for the postmortem of the deceased Miss 'X'.
On 27.9.2019 Dr Sudeep Gupta has conducted her autopsy and as per the postmortem report following injuries were found over her person :
(1) Ligature mark 27 cm x 1.5 cm all around the neck, oblique in shape 6 cm below right ear pinna, 3 cm below left ear pinna, 4 cm below the chin.
(2) Traumatic swelling of size 6 cm x 4 cm over both of libia majora along with redness and congestion of surrounding area seamen stain are present over the genital area.
Besides this there are three telephone numbers were written on the left palm of the deceased, out of which 8449691855, 8057755521 are relevant for the purposes of present case. As per the opinion of doctor the immediate cause of the death is Asphyxia as a report of hanging.
On these startling revelation made in the postmortem report, it is abundantly clear that prior to her death she was subject matter of merciless sexual assault. The Police has recorded 161 statement of the informant Mohan Singh, who reiterated the version of the FIR that all these named accused persons wants to take away the girl just to quench their animal lust. The various independent witnesses of the same village disclosed the fact that initially co-accused Rajesh s/o Hari Singh has developed certain amount of affinity towards the girl and thereafter his three friends namely Boby s/o Soni, Sunil @ Suki s/o Rajvir Singh and Tinku s/o Charan Singh (present applicant), were also developed an intimate terms with the girl. There was pressure upon the girl to develop relationship with one person but no accused wants to give up his relationship with the girl and in this bewildered stage of mind she has committed suicide. But none of these witnesses have able to give any clue as to how and under what circumstances there are severe injuries over her genitals.
Learned counsel for the applicant submits that out of three numbers mentioned over her palm, one of telephone number belongs to co-accused Rajesh. Learned counsel has drawn attention of the court to Annexure No.11 that on the fateful day the deceased has talked to mobile no.7060439274 which belongs to Hari Singh, father of co- accused Rajesh. In the statement of co-accused Rajesh has given vivid description regarding the involvement of all other accused persons including the present applicant Tinku.
Needless to mention here, that the age of the prosecutrix is barely 13 years and the four abled bodied accused persons brutally and mercilessly in order to quench their lust virtually raided upon her and the poor girl was subject matter of their animal instincts. Thus so far as the belated FIR is concerned, no doubt it is one of the factors while considering the bail application but in the instant case there informant after gathering the information from the various quarters and being fully satisfied regarding the involvement of the applicant in the offence he has lodged the 156(3) application thus to my mind there is no abnormality which adversely touches the core issue of the prosecution case.
Left with no option, at the tender age out of sheer shame she has committed suicide. This Court do not see any good reason to release such accused person on bail during trial.
Learned counsel for the applicant wants to draw attention of the Court to the latest pronouncement of Hon'ble Supreme Court in the case of State of Kerala vs Mahesh in Criminal Appeal No.343 of 2021 decided on 19.03.2021 in it has been opined :
“25. The provisions of Cr.P.C confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general.”
It has been further mention by the Hon'ble Supreme Court that in our view, the seriousness of the charge is, no doubt, one of the relevant considerations while considering the bail application but is not only test or the factor: the other factors that also requires to be taken note of is the punishment that could be imposed after the trial and conviction. Otherwise, if the former is only test, we would not be balancing the constitutional rights but rather recalibrating the scales of justice. Just as liberty is precious to an individual, so is the society's interest in the maintenance of peace law and order. Both are equally important.
A person who indulged in such a heinous offence where a young girl of 13 years out of sheer guilt commits suicides as the outcome of their nefarious act committed upon her, the action on the part of the applicant is not only brutal but also abhorring and thus they do not deserve any sympathy of the court. The application of the applicant is liable to be REJECTED.
However, it is contended that the speedy is the precious right of every under trial, under circumstances, in the event the applicant furnishes the copy of this order to the learned Trial Court, he may make necessary endeavour to conclude the trial as early as possible without granting any unnecessary adjournment to either of the parties. The applicant also undertakes that he would render the fullest cooperation in the speedy trial.
Order Date :- 6.4.2021 M. Kumar