Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47977 of 2019 Applicant :- Vishal Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Daga Counsel for Opposite Party :- G.A.,Pranshu Gupta.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant, learned A.G.A. as well as learned counsel for first informant and perused the record.
By means of this application, the accused-applicant, Vishal Gupta who is said to be involved in Case Crime No. 447 of 2019, under Sections 376-D, 386, 506, 120-B I.P.C., Section 3/4 POCSO Act and sections 66-E, 67, 67-A of I.T. Act, Police T.P. Nagar, District Meerut is seeking enlargement on bail.
Learned counsel for accused-applicant argued that the accused- applicant is innocent; he has been falsely implicated in this very case crime number being brother of Shobhit Gupta, with whom prosecutrix was under affairs; applicant is languishing in Jail since 15.07.2019 and he is of no criminal antecedent; there is no likelihood of applicant fleeing from course of justice or tampering with evidence in case, he is released on bail. Prosecutrix though having a date of birth in high school certificate, however her ossification test was conducted in view of direction given by this Court wherein her age was found 18 years; the entire Whatsapp messages were sent by Shobhit but an improbable story was narrated wherein alongwith Shobhit his real brother and sister were also named as accused persons. It is most improbable that real sister will facilitate in commission of gang rape by two real brothers. Initially Shobhit and the victim were under affairs and were intended to get married, but the said relationship was not accepted by family members and therefore the present case was registered. The statements of the victim recorded under sections 161 as well as 164 Cr.P.C. are under pressure of guardians. The applicant is of no mens rea. Hence bail has been prayed for.
Learned A.G.A. as well as learned counsel for informant have vehemently opposed the bail application with the contention that date of birth of prosecutrix is 24.10.2003 and on the date of occurrence she is of 16 years; when matriculation certificate is there, no other proof is required and the preference of matriculation age may be taken into account. Moreso, if the age determined by medical board is being taken, there may be variation of two years either way but same has been taken as 18 years. In compliance of order of this Court, determined age of the prosecutrix does not support the age as given in matriculation certificate. The statements of prosecutrix recorded under section 161 as well as 164 Cr.P.C. are fully intact and in reiteration of first information report. Offence under section 386 IPC is also there. Demand of money under coercion is substantiated by whatsapp messages which are part of case diary. Recording of obscene film, on the basis of which blackmailing and demanding money is found with evidence in investigation and the same are on record that is why the offence punishable under the Information Technology Act has been added in this case crime number.
Having heard learned counsel for both sides and gone through material placed on record, it is apparent that since beginning in the first information report it is mentioned that gang rape was committed by both brothers Shobhit Gupta and Vishal Gupta when prosecutrix visited their home for having tuition with trust and this trust was misused for commission of rape. Sister Shaili was made an accused but the role assigned to her is that of facilitation and rape was committed when she was out of room, but for the allegation against the present applicant, it is there in the first information report, statement under section 161 Cr.P.C., statement before medical officer at the time of medical examination made by prosecutrix itself as well as statement recorded under section 164 Cr.P.C.
Considering the present scenario and looking to the heinousness of offence of rape, likelihood of tampering with evidence in case of release on bail as well as likelihood of applicant fleeing from course of justice, there appears to be no ground for bail.
Accordingly, this Bail Application stands rejected. Order Date :- 16.8.2021 Tamang