Allahabad High Court
Azad @ Arsh vs State Of U.P. And Another on 10 November, 2020
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 04.11.2020 Delivered on 10.11.2020 Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22167 of 2020 Applicant :- Azad @ Arsh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sundeep Shukla Counsel for Opposite Party :- G.A.,Onkar Singh,Sachin Malik Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Shri Sundeep Shukla, learned counsel for the applicant, learned AGA for the State and Shri Onkar Singh, learned counsel for Complainant.
2. This is an application for bail preferred by applicant-Azad alias Arsh, who is accused in Case Crime No.176 of 2019, under Sections 452, 376D, 323, 506, 504 IPC and 3/4 POCSO Act, Police Station Lisadi Gate, District Meerut, after rejection of his bail by Special Judge, POCSO Act/Additional Sessions Judge, Meerut in Bail Application No.1642 of 2020 vide order dated 23.07.2000.
3. Counter affidavit has been filed on behalf of Complainant and rejoinder affidavit has also been filed.
4. Facts, as referred in First Information Report dated 23.02.2019 are, that, a First Information Report was lodged against four named persons, namely, Aasif, Kalwa, Imran, Wasim and one unknown person by Complainant alleging that in the intervening night of 20/21.02.2019 at about 12:00 or 1.00 AM, her daughter aged about 14 years, who was sleeping in an adjacent room came to him and while crying she told that Aarif and one unknown person entered in her room and raped her after putting knife on her neck. Complainant called Police dialing 100 number. On arrival of Police, the Complainant told them about the incident. After police left all accused persons with common intention came and threatened Complainant and his family. Name of the present applicant was disclosed during statement of victim recorded under Section 164 Cr.P.C. (mentioned as unknown in FIR).
5. Learned counsel for the applicant in support of bail application submitted that :-
(i) Name of applicant was for the first time disclosed in the statement of prosecutrix recorded on 27.02.2019, after 7 days of alleged occurrence, which indicates false implication of applicant.
(ii) Details of call made on 100 number in the night of occurrence at 00:55:13, as given through RTI reveals that event information was "Dusri Gali Ke Ladke Ghar Par Aa Gaye The Ladki Ko Uthane Ke Liye", therefore the allegations were only attempt of abduction and no allegation of rape was informed to police at the first instance.
(iii) Medical examination of the victim was conducted after four days of alleged occurrence wherein it is opined that there was no sign of any forceful sexual act but sexual assault cannot be ruled, however, no sign of any physical injury was seen, therefore, allegation of gang rape is not corroborated with the above referred medical report.
(iv) Victim in her statement recorded under Section 164 Cr.P.C. has mentioned that at the time of occurrence, her two sisters were also sleeping in her room on separate cot, which belies the prosecution story as it is not possible that during occurrence, both sisters remain sleeping.
(v) There are material inconsistency in the statement of victim recorded under Sections 161 and 164 Cr.P.C., which is also referred by Investigating Officer in the case diary.
(vi) According to age determination report, issued by Chief Medical Officer, Meerut, age of the victim was about 16 years on 26.02.2019, therefore, no offence is made out under POCSO Act.
(vii) Applicant has explained his criminal history of three cases in paragraph 30 of the affidavit.
(viii) Applicant is languishing in jail since 06.07.2020.
6. Learned A.G.A. appearing for State and learned counsel appearing for Complainant have opposed the bail and submitted that:-
(i) Applicant remained absconding for about 17 months. When police went to arrest him on 21.03.2019 his family members attacked police party and allowed the applicant to run away. In altercation police personnel were assaulted and FIR was lodged against the family members and now charge-sheet is also filed against them. Applicant, thereafter, remained absconding and finally surrendered on 06.07.2020. The conduct of the applicant shows that there is every likelihood of obstruction in fair trial, in case, he is released on bail.
(ii) Name of the applicant was disclosed by the victim on 27.02.2019 as soon as his name came to her knowledge on 26.02.2019.
(iii) There is no material contradictions in the statement of victim recorded under Sections 161 and 164 Cr.P.C.
(iv) Medical report completely corroborates the prosecution story as it is mentioned that ''sexual assault cannot be ruled out'.
(v) Investigation is still underway and release of applicant at this stage would hamper investigation.
7. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
8. In the backdrop of above mentioned legal and factual aspects, it is prima facie evident that there are serious charge of gang rape of a minor girl against the applicant and one another. Victim in her statement recorded under Section 164 Cr.P.C. has specifically mentioned name of the applicant to be 2nd assailant who committed offence of rape, as mentioned in FIR, therefore, there is prima facie direct allegation against the applicant under Section 376D IPC. The conduct of applicant to remain absconding for 17 months coupled with his criminal antecedents also goes against the submissions for grant of bail. As mentioned above, credibility and reliability of statement of witnesses cannot be looked deeply into, at this stage. Therefore, in totality of above discussion, no case is made out for grant of bail.
9. Accordingly, the present bail application is rejected.
Order Date :-10.11.2020 AK