Roshan v. State of U.P.

Court No. - 52

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29599 of 2018

Applicant :- Roshan Opposite Party :- State Of U.P. Counsel for Applicant :- Awadhesh Kumar Mishra Counsel for Opposite Party :- G.A.

Hon'ble Rajul Bhargava,J.

Heard Sri Awadhesh Kumar Mishra, learned counsel for the applicant and learned A.G.A. for the State and perused the material placed on the record.

Applicant-Roshan seeks bail in Case Crime No.310 of 2018, under Sections 364, 376, 506, 34 I.P.C. and 3/4 of The Protection of Children From Sexual Offences Act, Police Station Sector49, District Gautam Budh Nagar.

It has been argued by the learned counsel for the applicant that as per medical report the prosecutrix is aged about 16 years. In her statement recorded under Section 164 Cr.P.C., the prosecutrix has stated that when she had gone to attend the call of nature, three accusedpersons caught hold her and on alarm being raised by her, they have fled away from the scene of occurrence and she denied commission of rape upon her and even in her statement she did not name the accused. Therefore, the applicant, who is in jail since 27.03.2018, may be enlarged on bail during trial.

Per contra, learned A.G.A. has vehemently opposed the prayer for the bail and submitted that it appears that as the prosecutrix belongs to a poor strata of the society and under coercion and duress by the accused, she had made such a statement. However, the fact remains that there is allegation of gang-rape in the F.I.R., yet the police did not register a case under Section 376D I.P.C. The prosecution version of rape is supported by the medical evidence inasmuch as dead spermatozoa was seen in the vaginal smear of the prosecutrix and her hymen was found injured. There is categorical opinion of the doctor that there is evidence of sexual violence and the age of the prosecutrix is about 16 years. Therefore, the applicant does not deserve to be released on bail.