High Court rejected bail of an applicant accused of gang rape, holding that victim hostility is not grounds for bail. Trial to be concluded expeditiously.
Application rejected. No bail granted. Trial to conclude expeditiously.
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.
Neutral Citation No. - 2023:AHC:112788
Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44821 of 2022
Applicant :- Arif Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sushil Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
1-Heard Mr. Sushil Kumar Pandey, learned counsel for the applicant and Mr. Virendra Kumar Maurya, learned Additional Government Advocate representing the State of U.P.
2-By means of this application under Section 439 of Cr.P.C., applicant-Arif, who is involved in Case Crime No. 64 of 2021, under Sections 452, 506, 376D I.P.C. and Section 5(g)/6 POCSO Act, Police Station Fugana, District Muzaffar Nagar, seeks enlargement on bail during the pendency of trial.
3-As per prosecution case in brief, informant who is father of the victim lodged a first information report on 24.07.2021 for the alleged offence under Sections 452, 506, 376-D I.P.C. and Sections 5g/6 POCSO Act against Rahib, Sahib, Arif (applicant) and Maroof alleging inter-alia that in the intervening night of 23/24.07.2021, the accusedRahib barged into his house from the roof and by putting a pistol on the temples of his minor daughter aged about 15 years took her to shop which is in his house itself and opened the door of the house, where other three accused were already standing armed with pistol. As soon as the door opened, they all entered the house and put a pistol on his son's head. Thereafter all the accused persons disrobed her daughter and committed rape on her one by one and also made her obscene video.
4-It is argued by learned counsel for the applicant that before the trial court, informant (father of the victim), victim and her brother Rehan have been examined as PW-1, PW-2 and PW-3 but they have
turned hostile and co-accused namely Sahib, Maroof and Rahib have been granted bail by the co-ordinate Bench of this Court vide orders dated 01.02.2023, 14.02.2023 and 16.02.2023 in Criminal Misc. Bail Application Nos. 44127 of 2022, 46414 of 2022 and 49088 of 2022 respectively, therefore, the applicant who is languishing in jail since 26.07.2021 may be enlarged on bail.
5-On the other hand, learned A.G.A. opposed the prayer for bail of the applicant by contending that it is a case of gang rape. So far as submission of learned counsel for the applicant about hostility of the victim, her father and brother is concerned, it is submitted that F.I.R. was lodged on 24.07.2021 but their statements were recorded before the trial Court after a long gap of about one year between May to July 2022. In the meantime, accused side won over them. Much emphasis has been given by contending that on account of terror of antisocial elements, generally a common men and rape victims do not dare to raise their voice against them. It is also submitted that in the cases where rape victim does not support the prosecution case after long gap, many secrets are hidden behind it, hence hostility of the victims cannot be a ground for granting bail. Learned A.G.A. placing reliance of upon the judgment of the Hon'ble Apex Court in the case of Hemudan Nanbha Gadhvi versus State of Gujarat (2019) 17 SCC 523 , submitted that conviction of the accused can also be possible even after the victim turns hostile. Lastly, it is submitted that under the facts of the case, bail application of the applicant in such a heinous crime is liable to be rejected.
6-Having heard learned counsel for the parties and examined the matter in its entirety, I find that F.I.R. was lodged by the father of the victim on narration of the incident by the victim. Thereafter during investigation, victim in her statements under section 161 Cr.P.C. and 164 Cr.P.C. had also made serious allegation of gang rape on her by the accused persons. Victim before the trial Court has not denied the incident but stated that some other persons, who hid their identity by scarf have committed rape on her. This Court is also of the view that the hostility of the victim in heinous
offences like rape, murder, etc. is no ground for bail. So far as judgment in the matter of Hemudan Nanbha Gadhvi (supra) relied upon by the learned A.G.A. for the state, I find that in the said case, prosecutrix had turned hostile. Trial Court acquitted the accused on the ground that victim turned hostile but the accused was convicted by the High Court and confirmed by the Apex Court relying on the judgment of the Apex Court in the matter of State v. Sanjeev Nanda (2012) 8 SCC 450 , and some more judgments on the issue, wherein it has been observed by the Apex Court inter-alia that "neither the accused nor can the victim be permitted to subvert a criminal trial by stating falsehood and resort to contrivances, so as to make it the theatre of the absurd. Dispensation of justice in a criminal trial is a serious matter and cannot be allowed to become a mockery by simply allowing prime prosecution witnesses to turn hostile as a ground of acquittal." It is well settled that a judge is not bound to grant bail on the ground of parity in heinous offences like rape, etc. against his conscious merely in order to maintain consistency. This Court in exercise of power under Section 439 Cr.P.C. at this mid-stage of the trial does not deem it appropriate to discuss and evaluate the evidence of the victim and other prosecution witnesses in detail as the allegation and defence of the parties concerned is still open to be urged before the trial Court.
7-In the light of above discussion, considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties as noted above, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.
8-Accordingly, the bail application is rejected .
9-It is made clear that the observations contained in the instant order are confined to the issue of bail and shall not affect the merit of the trial.
11-However, considering the detention period of the applicant, the trial Court is directed to make an endeavour to conclude the trial, expeditiously
without granting any adjournment to either of the parties in accordance with law.
12- Copy of this order be sent to the trial Court for information and compliance.
Order Date :- 23.5.2023 Saurabh
Digitally signed by :- SAURABH KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether an applicant in a gang rape case should be granted bail considering the victim turned hostile and co-accused persons were granted bail.
Whether hostility of the victim in heinous offences like rape is a valid ground for rejecting bail in a trial.
Colour shows how this judgement treated each authority
Hemudan Nanbha Gadhvi versus State of GujaratDistinguished¶12
Hemudan Nanbha Gadhvi versus State of Gujarat (2019) 17 SCC 523 · Who else cites this
State v. Sanjeev NandaReferred¶12
State v. Sanjeev Nanda (2012) 8 SCC 450 · Who else cites this
1 provisions across 1 enactments
Arif
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Sanjay Kumar Singh
Parties & counsel
