In a bail application under IPC and POCSO Act, the Court rejected the prayer, holding that the burden of proving innocence was undischarged and the offence was heinous.
The bail application stands rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18489 of 2019
Applicant :- Shyamveer @ Shamu Opposite Party :- State Of U.P. Counsel for Applicant :- Brijesh Kumar Yadav Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Brijesh Yadav, learned counsel for the applicant, Sri Pankaj Srivastava, learned A.G.A. for the State and Mr. Ram Kumar, Advocate who has put in appearance on behalf of the informant by filing his vakalatnama in Court today which is taken on record.
Perused the material on record.
The present bail application has been filed by the applicant- Shyamveer @ Shamu with a prayer to enlarge him on bail in Case Crime No. 0056 of 2019, under Sections 354, 323, 504, 506 I.P.C. and Sections 7/8 POCSO Act, Police Station-Baldeo, District-Mathura, during the pendency of the trial.
From the records it transpires that the first information report has been lodged by Mahesh i.e. the mother of the victim, namely, Soniya Kumari on 13th March, 2019 at 12:28 p.m. alleging therein that on 11th March, 2019 at 09:00 a.m. (morning), when the first informant went to her farm, then Shyam Veer @ Samu (applicant herein), who used to live in his maternal uncle's place, namely, Hari Om, entered into her house and when the victim was alone, he caught her from her back side with bad intention. When the first informant came to her house, the victim told her about the said incident, thereafter when they went to the place of Hari Om for complaining about the said incident, then Hari Om, Dalveer and Vedjeet abusing in filthy language had beaten them and they had also threatened to kill them. It is against this incident that the present first information report has been lodged against Shyam Veer @ Shamu (applicant herein), Hari Om, Dalveer and Vedjeet.
In the statement recorded under Section 161 Cr.P.C., the victim has stated that she is 14 years old. On 11th March, 2019 when she was washing the Gate of her house, the coaccused Bhedjeet and the applicant came to her and on the instigation of Bhedjeet, the applicant molested her and when she shouted they ran way. When her mother came, she told her about the said incident and thereafter when they went to the place of Hari Om, three co-accused, namely, Hari Om, Bhedjeet and Tejveer beat them. Thereafter on the next day when the first informant was
coming from her farm, all the accused showing the gun threatened her for withdrawing the aforesaid case.
In the statement under Section 164 Cr.P.C., the victim has stated that on 11th March, 2019 at 09:00 a.m. when the victim was alone in her house, then Hari Om and the applicant entered into her house and they took her in a room, thereafter she was pushed down by Hari Om, who tried to rape her. When she shouted, one Chandraveer and Naina came. Thereafter she told the said incident to her parents. When the first informant, uncle of the victim and grand-father of the victim went to the house of Hari Om for complaining the same, Hari Om beat her grand-father. On 12th March, 2019 between 2 to 5 p.m. when she was coming from her farm, on the way Hari Om, Vedjeet and Tejveer came to her and by showing the gun they threatened her for withdrawing the aforesaid case. Due to fear, she had not raised any alarm and also not told the said incident to her parents. On 13th March, 2019 at 10:30 a.m. being disturbed by the aforesaid incident, she tried to commit suicide by hanging herself, but her neighbour saved her and thereafter she was taken to the hospital by his uncle.
The medication examination of the victim was conducted on 26th March, 2019, a copy of which is on record at page 25 of the paper book. As per the medical examination report, following injuries were found on the body of the victim:
"1. Old healed linear scar mark in front of the neck, associated C difficulty in swelling and tender nose.
2. Bluish multiple linear mark on ventral aspect of left forearm, 2 cm. away from left wrist joint.
3. Bluish contusion of size 3 cm x 4 cm on left heal.
4. C/o Bodyache."
It has been argued by learned counsel for the applicant that the applicant is innocent and he has been falsely implicated by the parents of the victim. The real fact is that the applicant and victim both were in love and they liked each other. It has been further argued that on the date of incident the victim called the applicant in her house and when the applicant went to her house, her parents saw them together, thereafter they beat the victim then the applicant ran away. The parties are consenting. It is next argued that the applicant has been falsely implicated by the informant in collusion with the village Pradhan due to village partybandi. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail,
the applicant shall not misuse the liberty of bail. The applicant is in jail since17th March, 2019.
Per contra, the learned A.G.A. for the State as well as the learned counsel for the informant have opposed the prayer for bail of the present applicant. They submit that upto this stage, there is no such material on the record on the basis of which it can be presumed that the applicants are innocent. The burden to prove the innocence of the applicants, which is required under Section 106 of the Indian Evidence Act, remains undischarged. So far as the contention of the learned counsel for the applicant that the parties are consenting is liable to be rejected on the ground that from the version of the first information report as well as as per the statements of the victim, it is not established that the parties are consenting. Apart from the above, because of the heinous offence committed upon the victim by the applicant along with other accused person, she tried to committed suicide as she was afraid due to the aforesaid incident. Why a young girl who was in love, can try to commit suicide. Learned counsel for the informant further submits that as per the medical examination report, the injures suffered by the victim are grievous in nature. Learned counsel for the informant next submits that the contention of the learned counsel for the applicant that the applicant has been falsely implicated due to village partybandi is also liable to be rejected on the ground that he was not resident of the said village, for some time he used to live at the place of his maternal uncle, inasmuch as in support of the same he has not brought on record any document evidence. It is case of such heinous crime where the social ramification of such crimes are very dishonourable to the victim and she suffers social death. The offences of this nature which involves social defamation, there is always a general tendency to suppress such events at the initial stage in order to avoid the lady being stigmatized. The offence committed by the applicant is egregious in nature and it speaks about depravity of the applicant character, who had no moral qualms in violating modesty and honour of a lady due to which she tried to commit suicide. Dealing with the complicity of applicantaccused and in light of the material on record, the learned A.G.A. vehemently submits that no case for bail is made out and the bail application of the present applicant is liable to be rejected.
Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State and upon perusal of the evidence brought on record as well as the complicity of the applicants but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application stands rejected.
However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same as expeditious,
as possible from the date of receipt of certified copy of this order, keeping in view the law laid down by the Apex Court in the case of Alakh Alok Srivastava Vs. Union of India and Another reported in AIR 2018 (SC) 2004, if there is no legal impediment. in accordance with law, without granting any unnecessary adjournment to either of the parties, provided the applicants fully cooperate in conclusion of the trial, if there is no other legal impediment.
Office is directed to transmit a certified copy of this order to the court concerned within a fortnight.
It is clarified that any observations, if any, made by this Court are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
(Manju Rani Chauhan, J.)
Order Date :- 1.5.2019 Sushil/-
3 issues framed by the court
Whether the applicant is entitled to bail in a case involving heinous offences under IPC and POCSO Act.
Whether the burden of proving innocence remains undischarged at this stage.
Whether consent of parties can be inferred in light of FIR and victim statement.
Colour shows how this judgement treated each authority
Alakh Alok Srivastava Vs. Union of India and AnotherReferred¶22
Alakh Alok Srivastava Vs. Union of India and Another AIR 2018 (SC) 2004 · Who else cites this
6 provisions across 5 enactments
Shyamveer @ Shamu
State Of U.P.
Manju Rani Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
