Appeal against the Section 376-D IPC charge, the applicant sought bail. The court noted the victim was a minor in a gang rape case. The application was rejected as it was not a fit case for bail.
Bail application rejected; no release granted.
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.
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Reserved on 7.9.2020 Delivered on 16.9.2020
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3406 of 2020
Applicant :- Asharaf Ali @ Chhote Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pooja Chaudhary,Sharda Prasad Mishra Counsel for Opposite Party :- G.A.,Rekha Rani,Shyam Sunder
Hon'ble Siddharth,J.
Heard Shri Sharda Prasad Mishra and Ms. Pooja Chaudhary learned counsels for the applicant; Shri Sunil Vashisth and Shri Shyam Sunder, learned counsels for the informant and learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Asharaf Ali @ Chhote Khan with a prayer to release him on bail in Case Crime No. 84 of 2019, under Sections 376-D, 506 IPC, section 4 of Protection of Children From Sexual Offence Act, 2012 and section 3 (2) 5 of S.C./S.T.(Prevention of Attrocities) Act Police Station Pahasu, District- Bulandshar, during pendency of trial.
This is the second bail application of the applicant. The first bail application of the applicant was rejected by this Court by the order dated 20.11.2019, since counsels for the applicant did not pressed the bail application at that stage.
Learned counsel for the applicant has submitted that since first bail application was not argued on
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merits,therefore this application may be heard on merits.
His submission is that according to the prosecution story on 14.4.2019 the daughter of the informant had gone to the house of her aunty (Buwa) to attend the marriage ceremony scheduled on 15.4.2019.Co-accused, Prem and applicant are alleged to have taken her to lonely place and committed rape on gun point. The First Information Report was lodged on 11.5.2019 and victim was subjected to medical examination and her statement under section 164 Cr.P.c. was recorded .The medical examination report of the victim and her statement under section 164 Cr.P.C. supported the prosecution case.
Learned counsel for the applicant has submitted that applicant has been falsely implicated in this case,being friend of co-accused Prem, who is cousin of the victim(Buwa’s son).There is financial dispute between father of Prem and father of the victim, therefore, First Information Report was lodged after 27 days of the incident.The allegation that victim was in coma for 27 days and was admitted in hospital,therefore there is delay in lodging the First Information Report is not correct since she attended marriage ceremony on 15.4.2019.The vehicle alleged to have used in the incident was not found to be car but registered as a bike.He has pointed out to the statement of Dr. Nagesh Varshney, who is alleged to have examined the victim for the first time. No information regarding rape was given to Dr. Nagesh Varshney, who has stated in his
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statement before the investigating officer that victim came for treatment of headache. Applicant has been falsely implicated in this case. He has further submitted that Bail Application No. 33739 0f 2019 of co-accused, Prem, has been rejected by this Court vide order dated 18.10.2019.Applicant’s case is different from the case of co-accused, Prem, since there was motive of financial dispute between father of the co-accused and father of the applicant but in the case of the applicant there was no motive for implication except his friendship with coaccused, Prem.The applicant is in jail since 24.6.2019 and has no criminal history.
Learned counsel for the informant has vehemently opposed the prayer of the applicant for enlargement of bail and submitted that victim was minor, aged about fourteen years, at the time of incident when she was subjected to gangrape by the applicant and co-accused, Prem. The plea of financial dispute between father of the co-accused and father of the victim has been argued for the first time before this court.No such plea was taken when the bail application was moved before the court below.The father of the applicant managed to deposit his licencee pistol in the back date only to make out a defence in this case. He has submitted that after the incident the victim was under shock since her cousin and co-accused Prem and his friend the applicant had committed such a grave offence against her.The victim could tell correct facts to the informant only after she recovered from shock.She was referred by Dr. Nagesh Varshney to Psychiatric. The C.M.O. has recorded in his
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certificate dated 13.5.2019 that condition of the victim was not good and doctor has stated that she can hear but is speechless. She can write little bit.The Eye balls respond. Referred to psychiatrist. In her medical examination doctor has found sign suggestive of recent forceful penetration of vagina. Possibility of sexual assault has not been ruled out.The delay in lodging of the First Information Report stands clearly explained by the mental and physical condition of the victim.
Learned A.G.A. has also opposed the bail application of the applicant and submitted that it is a case of heinous nature. A minor has been ravished by two persons. There is no ground made out for granting bail to the applicant, more so when bail application of co-accused, Prem has already rejected by a co-ordinate Bench of this Court.
Considering the above facts and circumstances of the case and arguments advanced on behalf the parties, this Court does not finds it to be a fit case for grant of bail. The bail application is rejected.
The trial court is expected to conclude the trial against the applicant within a period of one year from the date normal functioning of the trial court is restored.
Order Date :-16.9.2020 Atul kr. sri.
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1 issue framed by the court
Whether the applicant is entitled to be released on bail during the pendency of the trial given the heinous nature of the offence involving a minor victim.
3 provisions across 3 enactments
Asharaf Ali @ Chhote Khan
State of U.P.
Siddharth
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
