Dismissed

Dileep and Another v. State of U.P.

Allahabad HC1 May 2019BAIL/27117/2018

Case brief

AI extract

What is this about?

Criminal Misc. Bail Application rejected. The learned Single Judge denied bail to the accused in a case involving rape and sexual assault under Section 376 IPC and POCSO Act. The court held that no good reason existed to exercise discretion in favor of the accused.

What did the court decide?

Bail application stands rejected at this stage.

Dileep and Another Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2019)

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Court No. - 78

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27117 of 2018

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Applicant :- Dileep And Another Opposite Party :- State Of U.P. Counsel for Applicant :- Ajeet Kumar Srivastava,Swati Agrawal Srivastava Counsel for Opposite Party :- G.A.,Anita Singh,Dinesh Kumar Misra

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Sri Swati Agrawal Srivastava and Sri Ajeet Kumar Srivastava, learned counsel for the applicants, Sri Anita Singh, learned counsel for the informant, Sri Sheetal Prasad Chakravorty, learned A.G.A. for the State and perused the material on record.

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The present bail application has been filed by the applicant- Dileep and Pradeep with a prayer to enlarge him on bail in Case Crime No. 140 of 2018, under Sections 376, 511 I.P.C. and 3/4 POCSO Act, Police Station-Kerakat, DistrictJaunpur, during pendency of trial.

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It is argued by the learned counsel for the applicant that the applicants are innocent and have been falsely implicated in the present case due to ulterior motive. For the incident dated 17.05.2018 at 9:00 p.m., the F.I.R. has been lodged on 19.05.2018 by the informant-Dilau, who is a poor widow and the mother of the victim, against the applicants alleging therein that on 17.05.2018, a marriage ceremony was being performed at her neighbour's place, the daughter of the informant-Km. Anchal, who is student of Class Vth, went to shop of Hiralal for purchasing some material, while returning she was caught hold by the accused persons, they pressed her mouth and took away to old latrine, pushed her on the ground and attempted rape upon her, hearing her shouting and screaming, the informant reached there and she saw, the accused persons running from the place of incident.

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It is further argued by the learned counsel for the applicant that the statement of the victim-Km. Anchal under Section 161 Cr.P.C. was recorded on 24.05.2018 in which she is said to be 14 years old and has narrated the story in the same manner as alleged in the F.I.R. She has made allegation of sexual assault upon her by the accused persons. In the statement of the victim under Section 164 Cr.P.C., which was recorded on 28.05.2018,

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she has specifically stated that on 17.05.2018, a marriage ceremony was performed behind her house and she went to shop of Hiralal for purchasing some items but the shop was closed, then, she returned. On the way, the accused persons caught hold her and pressed her mouth and took her to an old latrine, after which the applicant-Dilip pushed her on the ground and caught hold of her hand and the applicant-Pradeep sexually assaulted her, due to which she has started bleeding. She has further stated that when the applicant-Dilip attempted rape upon her, she became unconscious. It is next submitted by the counsel for the applicant that in the statement under Section 164 Cr.P.C., the allegation of sexual assault is only against the applicant-Pradeep whereas the applicant-Dilip was only helping the applicant-Pradeep in sexually assaulting the victim. It is next submitted that due to some money dispute, the applicants have been falsely implicated in the present case with false and frivolous allegations.

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It is further argued by learned counsel for the applicants that as per the medical report, the victim is aged about 16 and half years. The applicants are languishing in jail since 23.05.2018. The applicants do not have any previous criminal history. In case, they are released on bail, they will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicants fleeing away from judicial process or tampering with the witnesses.

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Learned counsel for the informant has vehemently opposed the prayer for bail and submitted that the victim was a minor child at the time of the incident as per the Transfer Certificate, her date of birth is 26.02.2004. The accused applicants have committed rape upon the victim, which is a serious offence. It is next submitted that the contention of the learned counsel for both the applicants that both the applicants have been falsely implicated in the present case is liable to be rejected on the ground that both the learned counsel for the applicants have failed to produce any documentary evidence in support of the same, they only made general, vague and omnibus allegation against the prosecution, which cannot be accepted. It is next submitted that the statement of the victim under Section 164 Cr.P.C. goes to show that the applicant-Pradeep sexually assaulted her whereas in so many words as mentioned in her statement, has also been expressed that the applicant-Dilip had also attempted rape upon her and as she became unconscious, she was not in a position to clearly state that the applicant-Dilip had sexually assaulted her or not, hence the offence of sexually assaulting the victim is against both the accused persons.

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Learned counsel for the informant has placed reliance upon

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the judgment of the Apex Court in the case of State of Rajasthan vs. Sri Chand; (2015) 11 SCC 229 ; wherein in paragraph-10, the Apex Court has held as follows:-

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In State of Himachal Pradesh Vs. Dharam Pal, (2004) 9 SCC 681 , this Court was dealing with probation of offenders in case of offence of attempt to commit rape. The finding of this Court in the said judgment is relevant for all the offences against the women, which is as follows:

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"6. According to us, the offence of an attempt to commit rape is a serious offence, as ultimately if translated into the act leads to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and honour. In a traditional and conservative country like India, any attempt to misbehave or sexually assault a woman is one of the most depraved acts. .........."

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Per contra, the learned A.G.A. has also vehemently opposed the prayer for bail and submitted that the victim is minor and she was forcibly caught hold by the applicants and sexually assaulted by them. There is no such material on 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 dispute between the applicants and the first informant is concerned, no documentary evidence has been brought on record in support of the same. In case the applicants are released on bail they will again indulge in similar activities and will misuse the liberty of bail.

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Having considered the submissions made by the learned counsel for the applicants, learned counsel for the informant, learned A.G.A. for the State and upon perusal of the evidence brought on record as well as considering the complicity of the accused, 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 applicants, thus the bail application is stands rejected at this stage.

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The bail application is, accordingly, rejected .

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The trial Court is directed to expedite the trial of the present case and conclude the same as expeditiously 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 A lakh Alok Srivastava Vs. Union of India and another reported in AIR 2018 (SC) 2004 , if there is no legal impediment.

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Office is directed to transmit a certified copy of this order to the court concerned within a fortnight.

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Order Date :- 1.5.2019/JK Yadav

Dileep and Another v. State of U.P.

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Dileep and Another v. State of U.P.

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