Dismissed

Tasleem v. State of U.P.

Allahabad HC28 Mar 2022BAIL/44466/2021

Case brief

AI extract

What is this about?

Two bail applications filed under Section 376D IPC and Sections 5/6 POCSO Act against fathers of the prosecutrix were disposed of. The High Court rejected both applications, citing the gravity of the offence, evidence on record, and the fact that the trial was already at an advanced stage.

What did the court decide?

Bail applications were rejected; Trial Court directed to expedite trial within one year.

Tasleem Vs State of U.P. — Child Sexual Offences (POCSO) | Allahabad HC (2022)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44466 of 2021

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Applicant :- Tasleem Opposite Party :- State of U.P. Counsel for Applicant :- Sheshadri Trivedi,Sr. Advocate Counsel for Opposite Party :- G.A.

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Connected with

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33820 of 2021

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Applicant :- Rihan Opposite Party :- State of U.P. Counsel for Applicant :- Alok Kumar Mishra,Shyam Singh Somvanshi Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Satish Trivedi, learned Senior counsel assisted by Mr. Sheshadri Trivedi, learned counsel for applicant Tasleem and Mr. Shyam Singh Somvanshi, learned counsel for applicant Rehan and learned A.G.A. for State.

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These applications for bail have been filed by applicant Tasleem and Rehan seeking their enlargement on bail in Case Crime No. 553 of 2020 under Section 376DA IPC, Sections 5/6 POCSO Act, and Section 3(2)(5) SC/ST Act, P.S. Garhmukteshwar, District Hapur, during pendency of trial i.e. S.S.T. No. 78 of 2021 (State Vs. Rihan and others) under Section 376DA IPC, Sections 5/6 POCSO Act, and Section 3(2)(5) SC/ST Act, P.S. Garhmukteshwar, District Hapur,

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Perused the record.

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Criminal Misc. Bail Application No. 44466 of 2021 (Tasleem Vs. State of U.P.) came up for orders on 7.2.2022 and this Court passed following order:-

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"Since the matter relates to Section 376-D.A. of the IPC & Section 5/6 POCSO Act & Section 3(2)5 of SC/ST Act.

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Issue notice to the opposite party no. 2 through C.J.M., Hapur, who may file counter affidavit within a period of six weeks.

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Rejoinder affidavit, if any, may be filed within one week thereafter.

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Put up this case as fresh on 28.02.2022 along with the report from the C.J.M. Hapur regarding service."

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Pursuant to above order dated 7.2.2022, Office has submitted a report dated 12.3.2022 stating therein that notice of present bail application has been served upon informant. However, in spite of service of notice, no one has put in appearance on behalf of first informant to oppose aforesaid bail applications.

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Aforementioned bail applications arise out of same Case Crime number, therefore, they have been heard together and are now being disposed of by a common order.

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Record shows that in respect of an incident, which is alleged to have occurred on 19.12.2020, a delayed F.I.R. dated 20.12.2020 was lodged by first informant Sundar Jatav (father of the prosecutrix) and was registered as Case Crime No. 553 of 2020 under Section 376DA IPC, Sections 5/6 POCSO Act, and Section 3(2)(5) SC/ST Act, P.S. Garhmukteshwar, District Hapur. In the aforesaid F.I.R., four persons namely Abdul, Rihan, Taslim and Danish have been nominated as named accused.

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Gravamen of the allegations made in the F.I.R. is to the effect that named accused has disloged the modesty of prosecutirx namely Sheetal, daughter of the first informant aged about 13 years.

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After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C.

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Investigating Officer examined the first informant and thereafter he examined the prosecutrix namely Sheetal under Section 161 Cr. P. C. Her statement is on record as Annexure 3 to the affidavit. Prosecutrix in her aforesaid statement has alleged that all the named accused have dislodged her modesty by committing rape upon her in sequence. Subsequent to above, the prosecutrix was medically examined. Her medico legal report is on record as Annexure 5 to the affidavit. The prosecutrix in her statement before the Doctor, who examined the prosecutrix found a lacerated wound on left ring finger of the prosecutrix. The hymen of the prosecutrix was also found to be ruptured and torn. Certain samples were collected from the body of the prosecutrix for pathological examination. However, the supplementary medical legal report of the prosecutrix has not been brought on record. Ultimately, the prosecutrix was examined under Section 164 Cr. P. C. wherein also she has

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reiterated her earlier statement as recorded under Section 161 Cr P. C. It is apposite to mention here that in the F.I.R., the age of the prosecutrix has been mentioned as 13 years. In the medical legal examination report, the age of the prosecutrix has been determined as 16 years. Ultimately, Investigating Officer upon completion of investigation of aforementioned case crime number has submitted the charge sheet dated 23.2.2021, whereby all the named accused have been charge sheeted under Section 376DA IPC, Section 5/6 POCSO Act and Section 3 (2) (5) S.C./S.T. Act, After submission of aforementioned charge sheet, cognizaznce was taken upon same by Court concerned, vide Cognizance Taking Order dated 28.10.2021. Resultantly, Sessions Trial No. 78 of 2021 (State Vs Rihan and others), under Section 376DA IPC, Sections 5/6 POCSO Act, and Section 3(2)(5) SC/ST Act, P.S. Garhmukteshwar, District Hapur, came to be registered.

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During pendency of trial, one of the co-accused namely Danish died on 4.5.2021 at Safdarjung Hospital. Same is clearly conclusive from the letter dated 27.8.2021 sent by Jail Superintendent, District Ghaziabad to Court below.

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It may be mentioned here that co-accused Danish had approached this Court by means of Criminal Misc. Bail Application No. 18626 of 2021 (Danish Vs. State of U.P.). However, Court dismissed the said bail application, vide order dated 14.9.2021. For ready reference, same is reproduced herein under:-

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"Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the entire record. However no one has appeared on behalf of the first informant despite service of notice.

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The present bail application has been filed by the applicant in case crime No. 553/2020, under Section 376-D IPC & Section 5/6 of POCSO Act and Section 3(2)(5) of SC/ST Act, police station Garh Mukteshwar, District Hapur with the prayer to enlarge the applicant on bail.

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It has been argued by learned counsel for the applicant that the accused-applicant is innocent and he has been falsely implicated in this case. It has been pointed out that in the statement of victim girl, recorded under Section 161 Cr.P.C., the date of incident has been shown as 19.12.2020 and time has been shown as 1.30 PM, whereas in her statement recorded under Section 164 Cr.P.C. she has stated the date of incident as 20.12.2020 and the time was shown as 4.00 AM. It was further submitted that the version of victim girl is thoroughly false and baseless and that in fact someone else has committed rape upon her in the forest but as the matter was of communal theme, police have got falsely implicated the applicant in this case just to show the good work.

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Learned counsel has also referred the statement of victim girl recorded before the trial court and submitted that victim girl has not identified the applicant or co-accused persons. It has further been argued that the applicant is in judicial custody since 20.12.2020, having no criminal history and that in case, applicant is enlarged on bail, the applicant will not misuse the liberty of bail.

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Learned A.G.A. has opposed the prayer for bail and argued that victim girl has stated her age as 13 years and that even as per her ossification test, her age is 16 years and thus she was a minor girl and that in statements recorded under Sections 161 and 164 Cr.P.C., she has made allegation of gang rape against the applicant and co-accused persons.

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After considering submissions of learned counsel for the parties, looking into the seriousness of the allegations, gravity of the offence, severity of punishment and considering all attending facts and circumstances of the case, no case for grant of bail is made out.

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Accordingly, the instant bail application filed on behalf of applicant Danish is rejected.

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However, keeping in view the period of detention of the applicant, learned Trial Court is directed to expedite the trial and to decide the same expeditiously, preferably within a period of one year from the date of production of a copy of this order.

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A copy of this order be forwarded to the concerned court below for necessary compliance."

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As already noted above, the case was committed to the Court of Sessions/Special Judge, POCSO Act. During the course of trial, three prosecution witnesses namely P.W. 1 Sheetal (prosecutrix) P.W. 2 Sundar Jatav (first informant), P.W. 3 Raj Kumar (brother of prosecutrix) and P.W. 4 Dr. Haneefa Begum (the Doctor who medically examined the prosecutrix) have been examined.

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Mr. Satish Trivedi, learned Senior counsel for applicant Tasleem submits that applicants are innocent. They have been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in aforementioned case crime number. It is then submitted hat medical evidence does not support the prosecution story as unfolded in the F.I.R. As such, applicant is not liable to be prosecuted for an offence under Section 376 DA IPC and Sections 5/6 POCSO Act. He, further, submits that the statement of P.W. 1 as deposed before the Court below is not worthy of reliance. Similar challenge has been made to the statements of other witnesses who have been examined during course of trial. It is lastly submitted that applicant Tasleem is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one.

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Applicant is in jail since 20.12.2020. As such, he has undergone more than one year and three months of incarceration. In case, applicant is enlarged on bail, he shall not misuse liberty of bail and shall co-operate with the trial.

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Mr. Shyam Singh Somvanshi, learned counsel for applicant Rihan has adopted the arguments of learned Senior Counsel. He submits that applicant Rihan is also a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 20.12.2020. As such, he has undergone more than one year and three months of incarceration. In case, applicant is enlarged on bail, he shall not misuse liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed this application for bail. Learned A.G.A. contends that applicants are not only named accused, but also charge sheeted accused. As such, they do not deserve any sympathy of this Court. The prosecutrix in her statement under Sections 161/164 Cr. P. C. has supported the prosecution story. Upto this stage, four prosecution witnesses of fact have been examined, who have supported the prosecution story. He, further, submits that though this Court is a superior Court, but the dictates of prudence require that this Court should not evaluate the evidence, which has been recorded during course of trial, as any observation of this Court may prejudice the prosecution or the defence. Lastly reference has also been made to the recent judgement of Supreme Court in X (minor) Vs. State of Jharkhand and another, 2022 Livelaw(SC) 194, wherein the Court has set aside the bail order taking into consideration the provisions of Section 6 of the POCSO Act.

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Having heard learned counsel for applicants, learned A.G.A. for the state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that trial itself is at an advance stage, this Court does not find any good or justifiable ground to enlarge the applicants on bail. Resultantly, bail applications fail and are liable to be rejected.

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They are, accordingly, rejected.

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Order Date :- 28.3.2022 HSM

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Digitally signed by HARI SHANKER MISHRA Date: 2022.04.01 18:30:10 IST Reason: Location: High Court of Judicature at Allahabad

Tasleem v. State of U.P.

Case brief

What is this about?

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Tasleem v. State of U.P.

Case brief

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