This bail application under Section 439 CrPC, filed in connection with rape and POCSO offences, was rejected. The single judge held that despite inconsistencies in prosecution statements, the applicant was named in the FIR and the trial was ongoing, making it an unsuitable case for bail.
Prayer for enlargement on bail was 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. - 26803 of 2021 Applicant :- Rishikesh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Janardan Yadav,Rishabh Agarwal,Saurabh Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Rishabh Agarwal, learned counsel for the applicant and Sri S.B. Maurya, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Rishikesh, seeking enlargement on bail during trial in connection with Case Crime No. 303 of 2020, under Sections 376A, 376B IPC and 5A/6 POCSO Act, registered at P.S. Maharajganj, District Azamgarh.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that in the first information report lodged by the mother of the prosecutrix, it is stated that Rishikesh took away her minor daughter aged about 6 years in his house and then made an attempt to commit rape upon her, after which she started crying and on hearing her cry, she reached the place of occurrence and got her daughter back. The accused has run away from the house. Learned counsel for the applicant has argued that although the prosecutrix in her statement under Section 161 Cr.P.C. has supported the prosecution case but in her statement under Section 164 Cr.P.C., to a specific question put by the investigating officer as to whether she knows the name of the boy who committed the act on her, she states that he is Kundan. It is argued that in the said statement, she initially does not name the applicant. It is further argued by placing the statement of Smt. Sangeeta, the mother of the prosecutrix recorded before the trial court while she has been examined as P.W.-1 therein that for the first time she discloses the name of the applicant as Rishikesh @ Kundan Bhaiya just in order to bridge the gap between the said two names as in the first information report, statement under Section 161 Cr.P.C. of the prosecutrix, statement under Section 161 Cr.P.C. of the first informant, Rishikesh is stated to be the accused whereas the prosecutrix in her statement under Section 164 Cr.P.C. states that the accused is named Kundan. It is argued that even the medical examination report of the prosecutrix does not support the prosecution case as the Doctor did not find any injury on her private parts in spite of the fact that she in her statement under
Section 164 Cr.P.C. has stated that there was a sexual assault on her. It is argued that the implication of the applicant as such is false and with malafidy.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the prosecutrix as per the first information report is aged about 6 years. The Chief Medical Officer, Azamgarh has opined her age to be about 8 years. In so far as the allegations against the applicant are concerned, they are consistent throughout the prosecution case. It is argued that prosecutrix is a child. The applicant is named in the first information report. The trial is under progress and release of the applicant at this stage may have an adverse effect in the trial. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is named in the first information report and there are allegations throughout the investigation in the matter. The trial is under progress in which the statement of the first informant who is the mother of the prosecutrix has been recorded who has also supported the prosecution case. I do not find it a fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
The bail application is, accordingly, rejected.
Order Date :- 10.12.2021 Arif
(Samit Gopal, J.)
2 issues framed by the court
Whether the applicant is entitled to bail under Section 439 CrPC in proceedings for aggravated sexual offences against a child.
Whether the inconsistencies in prosecution statements justify granting bail.
1 provisions across 1 enactments
Rishikesh
State of U.P.
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
