Single judge rejected bail application of applicant accused of rape under POCSO, holding no sufficient ground to enlarge on bail despite victim becoming hostile, noting trial is pending and nature of offence.
Bail application rejected. Trial court directed to conclude trial expeditiously.
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Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6451 of 2022
Applicant :- Vishal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sunil Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
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-Vishal, who is involved in Case Crime No. 301 of 2021, under Sections 376-D, 506 IPC and Sections 5G/6 of POCSO Act, Police Station Nakur, District Saharanpur, seeks enlargement on bail during the pendency of trial.
As per prosecution case in brief, informant who is father of the victim lodged an FIR on 31.07.2021 against four accused persons namely Sachin, Vishal (present applicant), Ravi and Akash for the alleged offence under Sections 376-D, 506 IPC and Sections 5g/6 of POCSO Act with the allegation inter-alia that on 31.07.2021 at about 12:00 o'clock when his daughter had gone outside his house to attend the call of nature, accusedpersons, who were already ambushed there, caught hold her and showing country-made pistol (tamancha) , committed rape on her. After culmination of investigation, charge-sheet has been submitted against all the accused persons.
It is argued by learned counsel for the applicant that the applicant has been falsely implicated in this case. Before the trial court, the victim was examined as PW-3 on 18.02.2022 but she has denied the incident and has been declared hostile at the request of the prosecution, therefore, there is bleak chance of conviction of the applicant who is languishing in jail since 01.08.2021.
On the other hand, learned A.G.A. opposed the prayer for bail of the applicant by contending that it is true that the victim has denied the incident in question before the trial court but considering the
tone and tenor of the statement of the victim, possibility of winning over the victim from the accused side cannot be ruled out.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that informant, who is father of the victim has been examined as PW-1 on 20.04.2022 and he, in his examination-in-chief, has supported the prosecution case making allegation of rape on his daughter by the accused-Sachin with further allegation that other co-accused namely Vishal, Ravi and Akash were present at the spot giving threat to her but in cross-examination, he has given statement otherwise. Thereafter, victim was examined on 18.08.2022, who denied the incident but she has proved her signature on her statement under Section 164 Cr.P.C. and stated that the said statement was given by her at the instance of police. Since three prosecution witnesses have been examined before the trial court and trial of the applicant is proceeding, this Court in exercise of power under Section 439 Cr.P.C. does not deem it appropriate to evaluate and discuss the evidence recorded before the trial court in detail as the defence of the accused is still open to be urged before the trial court. I am also of the view that conclusion of the statement of a witness shall be drawn considering the whole statement of the witness not in isolation.
In view of the above, I do not find any good ground to enlarge the applicant on bail at this stage.
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.
However considering the detention period of the applicant, trial court is directed to make an endeavour to conclude the trial, expeditiously, without granting any unnecessary adjournment to either of the parties.
Order Date :- 7.4.2023 Saurabh
Digitally signed by :- SAURABH KUMAR High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to bail under Section 439 Cr.P.C. in a case involving rape under POCSO and IPC during the pendency of the trial.
Whether the hostile statement of the victim and inconsistencies in prosecution witness statements warrant granting bail.
1 provisions across 1 enactments
Vishal
State Of U.P.
Sanjay Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
