Bail applicant Gaurav sought enlargement in a case involving rape and POCSO charges. The court found the prosecutrix to be a minor and notes consistent allegations. The court rejected the bail application, holding it not a fit case for release.
Bail application was rejected; applicant's prayer for enlargement on bail was dismissed.
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Court No. - 88
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44883 of 2021
Applicant :- Gaurav Opposite Party :- State of U.P. Counsel for Applicant :- Harish Chandra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up in the revised list.
Notice was issued to the opposite party no.2 vide order dated 28.10.2021. As per the office report dated 21.12.2021, a report dated 20.10.2021 of C.J.M. concerned has been received stating therein that notice has been served on the opposite party no.2.
The perusal of the said report shows that notice has been served personally on the opposite party no.2.
No one appears on behalf of the opposite party no.2.
Heard Sri Harish Chandra, learned counsel for the applicant, Sri Ankit Srivastava, 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 Gaurav , seeking enlargement on bail during trial in connection with Case Crime No. 1110 of 2021, under Sections 376, 506 IPC and Section 3/4 POCSO Act, registered at P.S. Loni, District Ghaziabad.
The First Information Report of the present case was lodged by the prosecutrix on 10.08.2021 under Sections 376, 506 IPC naming the applicant as the sole accused alleging therein that on 06.08.2021 at 12:00 pm she was going to shop of the tailor and on the way the applicant who was sitting at his house caught hold of her hand and pulled her inside his house, bolted the door from inside and raped her. He also captured the video of it and threatened her of making the same viral.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that no incident whatsoever has been taken place. It is further argued that the incident in question is of 06.08.2021 for which the First Information Report has been lodged on 10.08.2021 which is after four days of the incident for which there is no plausible
explanation given by the prosecutrix/first informant.
Learned counsel has further argued that the prosecutrix was subjected to medical examination in which she was not found to have received any injury externally or internally and as such the factum of rape cannot be corroborated. It is argued that although the prosecutrix has in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. stated of the applicant committing rape upon her but the same is false with malafide intentions as even previously due to some dispute of money between the parties there was a criminal case between them which was settled and compromised, copy of the said compromise is annexed as annexure 7 to the affidavit.
Learned counsel has further argued that the prosecutrix is a major and as per the Aadhar Card, her date of birth is 01.01.2002. It is argued that the applicant is having one criminal case in which he has been granted bail. Para 3 of the supplementary affidavit dated 06.12.2021 and the order granting bail which is annexed as Annexure S.A.-1 has been placed before the Court to buttress the said argument. The applicant is in jail since 31.08.2021.
Per contra, learned counsel for the State opposed the prayer for bail and argued that as per the certificate issued by school which is of Class-1, her date of birth is 10.10.2005 whereas as per school records of Class-8th, her date of birth is 28.03.2006 and by both the date of births, she would be minor. It is argued that the applicant is named in the First Information Report, statement under Section 161 Cr.P.C. and 164 Cr.P.C. of the prosecutrix and there are allegations against him. 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 in so far as the naming of the applicant and the allegation of rape is concerned, the same is consistent throughout the prosecution case. As per the school records, the prosecutrix is a minor. In so far as the Aadhar Card is concerned, the same has not sanctity as far as the date of birth in it, is mentioned. 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 .
The party shall file computer generated copy of such order
downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 7.2.2022 M. ARIF
(Samit Gopal, J.)
Digitally signed by MOHAMMAD ARIF Date: 2022.02.09 11:44:36 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail in a case involving rape and POCSO allegations where the prosecutrix is a minor.
Whether the delay in lodging the First Information Report and lack of external injuries entitle the accused to bail.
1 provisions across 1 enactments
Gaurav
State of U.P.
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
