Allahabad High Court
Chandi Das vs State Of U.P. And 3 Others on 10 October, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:194837 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11723 of 2023 Applicant :- Chandi Das Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Mukesh Kumar Jha,Kanchan Sharma,Prashant Vyas Counsel for Opposite Party :- G.A.,Bhupendra Pratap Singh,Rahul Chaudhary Hon'ble Rajeev Misra,J.
Heard Mr. G.S. Chaturvedi, the learned Senior Counsel assisted by Ms. Kanchan Sharma, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rahul Chaudhary, the learned counsel for first informant/opposite party-2.
This application for bail has been filed applicant- Chandi Das seeking his enlargement on bail in Case Crime No. 666 of 2018, under sections 376AB IPC, 5(M)(6) and 9(F)(10) POCSO Act, Police Station- Surajpur, District Gautambuddha Nagar during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 12.7.2018, a delayed F.I.R. dated 13.7.2018 was lodged by first informant Ashish Taneja and was registered as Case Crime No. 666 of 2018, under sections 376AB IPC, 5(M)(6) and 9(F)(10) POCSO Act, Police Station- Surajpur, District Gautambuddha Nagar. In the aforesaid F.I.R. applicant- Chandi Das has been nominated as solitary named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that on account of an act of applicant, the prosecutrix namely X aged aout 3 years and five months suffered injuries on her person.
After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was medically examined on 13.7.2018. The Doctor who medically examined the prosecutrix has opined as under:
"Hymen Torn"
Ultimately, the statement of the prosecutrix was recorded under section 161 Cr.P.C. which is on record as S.A.-9 to the supplementary affidavit. The prosecutrix in her aforesaid statement has fully supported the F.I.R. Thereafter the statement of prosecutrix was recorded under section 164 Cr.P.C. Same is on record as S.A.-11 to the Supplementary affidavit. The prosecutrix in her aforesaid statement has rejoined her previous statement recorded under section 161 Cr.P.C.
During course of investigation, Investigating Officer further recorded the statement of the first informant, mother of the prosecutrix, under section 161 Cr.P.C. who have supported the F.I.R.
On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly submitted the charge sheet dated 25.8.2018, whereby applicant has been charge sheeted under section 376AB IPC, 5(M)(6) and 9(F)(10) POCSO Act.
Learned Senior counsel for applicant contends that though the applicant is a named and charge sheeted accused but he is innocent. Much emphasis was laid on the fact that as per the CCTV footage of the place of occurrence, the entire occurrence has been recorded but the complicity of applicant is not established. To buttress the aforesaid submission, reliance was placed upon supplementary affidavit filed by learned counsel for applicant in Court, today which has been taken on record.
Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 14.7.2018. As such, he has undergone more than five years and two months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage no such circumstance has emerged on the record necessitating the custodial arrest of applicant during pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. for State and the learned counsel for first informant opposite party-2, have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The prosecutrix is small child aged about 3 years and 5 months. The criminality alleged to have been committed by applicant falls in the category of Aggravated Sexual Assault. Touching of private part of prosecutrix falls in the category of bad touch, and also comes within the ambit of rape provided under Section 315 IPC also. The medical opinion clearly establishes the commission of crime in question. The prosecutrix is a small child aged about 3 years and five months. She has clearly and categorically implicated the applicant in the crime in question. Upto this stage, there is nothing on record to infer false or malacious prosecution of applicant. No such, material has been brought on record to doubt the credibility of the prosecutrix either. In view of the nature and gravity of offence, no sympathy be shown by this Court in favour of applicant.
Having heard the learned Senior Counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that prosecutrix is a small child aged about 3 years and 5 months whose modesty has been dislodged, the material evidence clearly supports the occular version of the occurrence, the prosecutrix in her statements under section 161/164 Cr.P.c. has remained clear, categorical and consistent, there is nothing on record to disbelieve the prosecutrix, no false or malicious prosecution of applicant can be inferred either, the reliance placed upon the CCTV footage of the occurrence is misconceived as there is no certificate regarding the same in terms of Section 65 B of the Evidence Act, therefore, irrespective of the submissions urged by the learned Senior Counsel in support of this application for bail, this court does not find any sufficient or good ground to enlarge the applicant on bail.
As a result, bail application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 10.10.2023 Arshad