Dismissed

Afsarool v. State of U.P. and Another

Allahabad HC10 Oct 2023BAIL/8318/2021

Case brief

AI extract

What is this about?

In this bail application, the Allahabad High Court rejected the prayer for bail filed by Afsarool during a trial involving allegations under POCSO and other IPC sections. The court found it not fit to release the applicant at this stage given the nature of the case and the supported prosecution evidence.

What did the court decide?

Bail application rejected; applicant denies enlargement on bail.

Afsarool Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:194971

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Court No. - 69

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8318 of 2021

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Applicant :- Afsarool Opposite Party :- State of U.P. and Another Counsel for Applicant :- Harish Chandra Yadav,Dinesh Singh,Manvendra Singh,Mohd. Farooq,S.K.Mathur,Vindeshwari Prasad Counsel for Opposite Party :- G.A.,Shailendra Singh

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Hon'ble Samit Gopal,J.

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List revised.

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Counter affidavit of the State files today in Court which is taken on record.

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Learned counsel for the applicant submits that he does not intend to file any rejoinder affidavot to the same.

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Heard Sri Manvendra Singh and Sri Vindeshwari Prasad, learned counsels for the applicant, Sri Abhishek Singh, Advocate holding brief of Sri Shailendra Singh, learned counsel for the first informant and Sri Ajay Singh, learned AGA-I for the State and perused the material on record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Afsarool , seeking enlargement on bail during trial in connection with Case Crime No. 536 of 2020, under Sections 354-Kha/376/506 IPC and Section 3/4 POCSO Act, registered at P.S. Kotwali, District Fatehpur.

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The FIR of the matter was lodged on 14.08.2020 by Jumman Ahmad under Section 354 IPC and Section 7/8 POCSO Act against the applicant with the allegation that Afsarool the applicant is his neighbour lured his minor daughter aged about 13 years and enraged her modesty. He threatened her and made her naked whereupon he reached there after which the accused ran away. He due to shame did not lodge the report earlier. Now he is lodging the report.

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Learned counsel for the applicant argued that as per the version of the FIR, the first informant is an eye witness of the incident but there is no allegation of the applicant committing

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any sexual assault on the victim. It is argued that in the First Information Report, there is no disclosure of date and time of the incident. It is argued that the first informant has reiterated the same version as that of the first information report in his statement recorded under Section 161 Cr.P.C. It is argued that subsequently the victim in her statement recorded under Section 161 Cr.P.C. and 164 Cr.P.C. states of the applicant committing rape upon her. It is further argued that subsequently Kamrul Nisha the mother of the victim was introduced as an eye witness of the incident who states of date as 12.08.2020 and further states of her daughter and the applicant lying naked on the cot after which she brought back her daughter who then told her that the applicant committed rape upon her. It is argued that looking to the facts of the case, it is clear that the factum of rape is missing in the First Information Report despite the first informant claiming himself to be an eye witness of the case. It is argued that during investigation Section 7/8 POCSO Act has been deleted whereas Sections 376, 506 IPC and Section 3/4 POCSO Act has been added. He further argued that the applicant has no criminal history as stated in para 12 of the affidavit and is in jail since 16.08.2020.

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Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail. It is argued that as per the FIR, the victim is stated to be about 13 years of age and as per the certificate of the CMO concerned she has been opined to be of about 12 years of age. It is argued that the trial in the present case is going on in which the first informant and the victim have been examined as PW-1 and PW-2 respectively and both the said witnesses have supported the prosecution case. It is argued that the applicant is named in the FIR, statements of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. there is an allegation of rape as stated by the victim. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected.

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After having heard learned counsels for the parties and perusing the records, it is evident that the victim is opined to be 12 years of age as per the certificate of CMO concerned, she is a minor. She states in her statement during investigation of the applicant committing rape. The trial is under progress in which the first informant and the victim have been examined as PW-1 and PW-2. The said prosecution witnesses have supported the prosecution case. Looking to the facts of the case and also the facts that the trial is under progress, I do not find it a fit case for bail at this stage.

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Considering the totality of the case in particular, nature of

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evidence available on record, I am not inclined to release the applicant on bail.

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The bail application is, accordingly, rejected .

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Order Date :- 10.10.2023 M. ARIF

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(Samit Gopal, J.)

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Digitally signed by :- MOHAMMAD ARIF High Court of Judicature at Allahabad

Afsarool v. State of U.P. and Another

Case brief

What is this about?

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Afsarool v. State of U.P. and Another

Case brief

What is this about?

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