Allowed

Shaleem v. State of U.P. and 3 Others

Allahabad HC20 Apr 2023BAIL/7696/2023

Case brief

AI extract

What is this about?

Criminal Misc. Bail Application filed for release of applicant Shaleem accused in multiple offences including rape under POCSO and IPC. Court noted material contradictions in victim statements recorded under Sections 161 and 164 Cr.P.C. Held that it is a fit case to grant bail without expressing opinion on merits, subject to standard conditions.

What did the court decide?

Release of the applicant Shaleem on bail on furnishing a personal bond and two sureties subject to conditions of appearance and non-interference.

Shaleem Vs State of U.P. and 3 Others — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Court No. - 74

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7696 of 2023

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Applicant :- Shaleem Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Sunil Kumar Dwivedi Counsel for Opposite Party :- G.A.,Gyan Bahadur Singh,Vidit Narayan Mishra

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Hon'ble Sameer Jain,J.

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Heard Sri Sunil Kumar Dwivedi, learned counsel for the applicant, Sri Gyan Bahadur Singh, learned counsel for the informant and Dr. S.B. Maurya, learned AGA-I for the State.

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The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 694 of 2022, under Sections 363, 366, 328, 385, 37693), 376-D, 504, 506 IPC and Section 5/6 POCSO Act and Section 3(2)(v) SC/ST Act, Police Station Sector 39 Noida, District Gautam Buddha Nagar during pendency of the trial.

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FIR of the present case was lodged against unknown persons under Section 363 IPC and according to the FIR two daughters of the informant aged about 13 years and 17 years had gone to the market but they did not return back.

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Learned counsel for the applicant submitted that applicant was not named in the FIR and during investigation when both the victims were recovered next day then their statements under Section 161 Cr.P.C. were recorded and they stated that they had gone according to their own wish to visit a mall and thereafter due to fear of their mother they stayed there and thereafter when they were standing at Atta market then police recovered them and they did not disclose the name of applicant. He further submits that even from the recovery memo, it appears that both the alleged victims were recovered from a market while they were standing there. He further submits that statements of victims under Section 161 Cr.P.C. were recorded on 05.11.2022 and thereafter their second statements were recorded and in second statement also they did not make any allegation against anyone and they did not disclose the name of applicant. He further submits that when the statement of one victim aged about 13 years was recorded under

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Section 164 Cr.P.C. on 08.11.2022 i.e. after three days then she changed the entire version which she stated earlier in the statement recorded under Section 161 Cr.P.C. and stated that she was raped by one Aamir and she also disclosed the name of one Sameer and stated that both Aamir and Sameer forced her and her sister to perform marriage with them but she also did not disclose the name of applicant. He further submits that when statement of second victim aged about 17 years was recorded under Section 164 Cr.P.C. then she disclosed the name of applicant and stated that applicant committed rape with her in a car. He further submits that story narrated by both the victims in their statements recorded under Section 164 Cr.P.C. are contradictory to each other and in the statement recorded under Section 161 Cr.P.C. even the name of applicant was not disclosed, therefore, statement recorded under Section 164 Cr.P.C. of both the victims are not reliable.

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He further submits that as victim no.2 i.e. victim aged about 17 years did not make any accusation against the applicant in her earlier statement recorded under Section 161 Cr.P.C, therefore, no reliance can be placed also on this angle too to her statement recorded under Section 164 Cr.P.C. He further submits as per new amendment under the provisions of POCSO Act and Section 161 Cr.P.C. these statements were recorded under camera and duly signed by the victim, therefore, story narrated by the victim of rape in her statement recorded under Section 161 Cr.P.C. cannot be duly brushed aside and there is material contradiction in the statements of victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C., therefore, applicant may be enlarged on bail.

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He further submits that there is no allegation against the applicant that applicant knowing that victim belongs to SC/ST community, therefore, he committed rape with them, therefore, provisions of SC/ST Act is not applicable.

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Per contra, learned AGA and learned counsel for the informant opposed the prayer for bail and submitted that in the statement of one victim recorded under Section 164 Cr.P.C. there is allegation of rape against applicant and she categorically stated that he committed rape with her in the car but both the counsels could not dispute the fact that in earlier statements record under Section 161 Cr.P.C. none of the victim disclosed the name of applicant and did not make any allegation of rape and further they also could not dispute the fact that even in the statement recorded under Section 164 Cr.P.C. of the victims there are material contradictions and in the statement of one of the victim who is aged about 13 years the name of applicant was not disclosed.

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I have heard learned counsel for the parties and perused the record of the case.

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Although, from perusal of the statement of one of the victim who is aged about 17 years recorded under Section 164 Cr.P.C. there is allegation of rape against the applicant and as per the victim applicant committed rape with her in a car but from the perusal of the statement of victim recorded under Section 161 Cr.P.C. there is no such allegation against the applicant and it appears that she did not make any allegation of rape against anyone and did not even disclose the name of applicant.

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Further, in the present case simultaneously two daughters were missing and they recovered next day while they were standing in market and till the statement recorded under Section 164 Cr.P.C. they did not make any allegation of rape but when the statement of one of the victim aged about 13 years was recorded under Section 164 Cr.P.C. then she made allegation against one Aamir and she did not disclose the name of applicant and name of applicant was disclosed first time in the statement of second victim recorded under Section 164 Cr.P.C., therefore, it appears that there is also material contradiction in statements of both the victims recorded under Section 164 Cr.P.C.

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Therefore, from the discussion made above, in view of this Court, it is a fit case to release the applicant on bail.

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Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed .

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Let the applicant - Shaleem be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

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(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.

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(iii) The applicant shall not indulge in any criminal and anti-social activity.

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In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

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Order Date :- 20.4.2023 AK Pandey

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Digitally signed by :- ANUPAM KUMAR PANDEY High Court of Judicature at Allahabad

Shaleem v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Shaleem v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

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