The single judge allowed bail to the applicant charged with rape under Section 376 IPC and POCSO Act, noting a lack of evidence such as injuries or corroboration from co-sleepers.
Bail on personal bond and four sureties subject to standard conditions including no tampering and appearing in court.
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. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9144 of 2022
Applicant :- Kaluwa @ Mustafa Opposite Party :- State Of U.P And 3 Others Counsel for Applicant :- Javed Khan,Nand Kishor Mishra,Shilpa Ahuja Counsel for Opposite Party :- G.A.,Meraj Ahmad Khan
Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for the applicant, learned counsel for complainant as well as learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that he is innocent and has been falsely implicated in the present case for committing rape with the daughter of the informant aged about 16 years. Allegedly the incident took place on 9.12.2021 in the mid of the night and applicant was caught by the informant while running away from the spot and handed over to the police called on dial 112. Further submitted that the F.I.R. was lodged on 10.12.2021 at 9.48 a.m. and no explanation for delay has been given by the informant in the F.I.R. It has also been stated that applicant was caught by the informant and handed over to the police on the place of occurrence but no any F.I.R. was lodged at that time and also applicant was not detained in police station but he was arrested by the police from bus stand on 13.12.2021. In this way, the arrest of the applicant by the informant and handing over to the police becomes false. There were three girls in the same room where incident is said to have taken place with the victim which is not possible in any way in presence of two other girls those were also sleeping in the same room. Statements of girl namely Rani and Rukhsana shows that they were also sleeping in the room on a cot with the victim but they have also not seen the applicant while committing rape with the victim. It is also submitted that in medical examination no any injury was found on the person of the victim even on her private part. In this way, there is no evidence on record to show that rape was committed with the victim. There is no criminal history against the applicant. He is languishing in jail since 14.12.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned counsel for complainant as well as learned AGA opposed the prayer for bail and urged that in this case, the victim was aged about 16 years and she has made allegation of
rape against this applicant in mid of the night in the room where she was sleeping with two other girls namely Rani and Rukhsana. She has also supported the prosecution case under Section 164 Cr.P.C. though no any injury was found on the person of victim, during medical examination, therefore, he is not entitled for bail.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and the fact that two other girls were sleeping with the victim in a room, they did not see the applicant while committing rape and also no any injury was found on the person of victim and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Kaluwa @ Mustafa involved in Case Crime No. 468 of 2021, under Sections 452, 376, 506 I.P.C. and Section 3/4 POCSO Act, P.S. Bhojpur, District Moradabad be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 1.9.2022
A. Singh
Digitally signed by ANURAG SINGH Date: 2022.09.05 17:03:04 IST Reason: Location: High Court of Judicature at Allahabad
1 issue framed by the court
Whether the applicant was entitled to bail in the rape trial despite lack of corroborative evidence from other girls and absence of injuries.
Kaluwa @ Mustafa
State Of U.P And 3 Others
Subhash Chandra Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
