Bail application rejected for an accused charged with offences under 363, 376D IPC and POCSO Act involving a minor victim. Court held Section 164 statement prevails, offence is heinous, and gravity of punishment precludes bail pending trial.
Application for bail under Section 439 Cr.P.C. rejected; accused released on bail not allowed.
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Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34581 of 2022
Applicant :- Ankit @ Safi Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Chandra Prakash Pandey Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
As per ofÏce report dated 24.01.2023, notice has been personally served upon the opposite party no. 2 but no one has put in appearance on his behalf.
Heard learned counsel for the applicant and learned Additional Government Advocate representing the State.
By means of this application under Section 439 of Cr.P.C., applicant-Ankit @ Safi, who is involved in Case Crime No. 217 of 2021, under Sections 363, 376D I.P.C. and Sections 3/4 of POCSO Act, Police Station Chhibramau, District Kannauj, seeks enlargement on bail during the pendency of trial.
As per prosecution case in brief, informant who is father of the victim lodged an F.I.R. on 24.04.2021 against five accused persons namely Akash @ Rajbabu, Ankit @ Safi (present applicant), Sumit, Neeraj and Mamta Devi with the allegation inter-alia that his minor daughter, aged about 15 years, was enticed away by co-accused Akash @ Rajbabu and other co-accused persons, named in the F.I.R., have helped him in enticing away his daughter.
The main substratum of argument of learned counsel for the applicant is that the victim was recovered on 03.06.2021, thereafter, her statement under Section 161 Cr.P.C. was recorded in which she has stated inter-alia that on 21.04.2021, she herself went to Jaipur where co-accused Akash met her and took her to his room. In the said statement, it is also stated that two years back, she had solemnized her marriage with Akash and physical relation was also made between them. In December, 2020 when the victim was pregnant, co-accused Akash got her
foetus aborted but at present, she is also pregnant. It is further pointed out that when her statement under Section 164 Cr.P.C. was recorded, she has made allegation of committing misdeed with her against the present applicant as well as co-accused Akash. On the strength of said facts, it is argued that there are contradictions in the statement of victim under Section 161 and 164 Cr.P.C. and she has also refused for her internal examination, therefore, it is a case of false implication of the applicant. The applicant has no criminal history to his credit and is languishing in jail since 18.06.2021.
Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that the victim is a minor child and she, in her statement under Section 164 Cr.P.C., has made allegation of rape against co-accused Akash as well as present applicant-Ankit in a very clear terms that the present applicant Ankit used to do more wrong things with her. It is next submitted that applicant-Ankit not only committed misdeed with her but also extended threat to kill her in case she tells anything to anybody. He also pointed out that the victim has also disclosed that both Akash and Ankit used to force her to drink liquor and at the time of recording the statement of the victim under Section 164 Cr.P.C., she was pregnant.
Having heard learned counsel for the parties and examined the matter in its entirety, this Court is of the view that the statement under Section 164 Cr.P.C. will prevail over the statement under Section 161 Cr.P.C. So far as the submission of learned counsel for the applicant that the victim has refused for her internal examination, therefore, applicant cannot be convicted is concerned, it is well settled that conviction of a rape accused can be done on the solitary statement of the victim if the same has been found trustworthy by the trial court. As on date, this Court in exercise of power under Section 439 Cr.P.C. does not deem it appropriate to give any finding and discuss the evidence in detail as the allegation and defence of the accused is still open to be urged before the trial court. There is no dispute that the
victim is minor child. The offence is heinous in nature.
Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected .
It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 12.4.2023 Saurabh
Digitally signed by :- SAURABH KUMAR High Court of Judicature at Allahabad
3 issues framed by the court
Whether bail should be granted to the applicant accused of sexual offences involving a minor victim.
Whether the contradiction between Section 161 and Section 164 Cr.P.C. statements of the victim affects the bail application.
Whether the refusal of internal examination and lack of medical evidence precludes conviction or bail denial by the High Court.
3 provisions across 1 enactments
Ankit @ Safi
State Of U.P. And 3 Others
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
