Allahabad High Court
Rakesh @ Daini vs State Of U.P. And 3 Others on 14 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:142654 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54996 of 2021 Applicant :- Rakesh @ Daini Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Surendra Kumar Tripathi,Sudhakar Shukla Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sudhakar Shukla, the learned counsel for applicant and the learned A.G.A. for State
2. Perused the record.
3. Instant bail application has been filed by applicant- Rakesh @ Daini seeking his enlargement on bail in Case Crime No.311 of 2023 under Sections 376, 506 I.P.C and Sections 3/4 POCSO Act, Police Station-Malpur, District-Agra during the pendency of trial.
4. On 02.06.2023, this Court passed the following order:
"Issue notice to the opposite parties, returnable at an early date. List this case on 14.07.2023.
Order Date :- 2.6.2023 "
5. Subsequent to above order dated 02.06.2023, office has submitted a report dated 14.07.2023 stating therein that notice could not be served upon first informant/opposite party-2 as he has left his last known address after disposing of his immovable property. Notice has been effected by means of substituted service by service upon Child Welfare Committee, District-Agra.
6. Record shows that in respect of an incident, which is alleged to have occurred on 25.07.2021, a delayed F.I.R. dated 06.08.2021, was lodged by first informant-Smt. Munni Devi (mother of the prosecutrix) and was registered as Case Crime No.311 of 2023 under Sections 376, 506 I.P.C and Sections 3/4 POCSO Act, Police Station-Malpur, District-Agra. In the aforesaid F. I.R., applicant-Rakesh @ Daini has been nominated as solitary named accused.
7. The gravamen of the allegations made in the F.I.R. is to the effect that on 25.07.2021, when prosecutrix was doing work near her house then her neighbour Rakesh @ Daini came and gagged her mouth and thereafter dislodged her modesty by committing rape upon her.
8. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. The statement of the prosecutrix was recorded under Section 161 Cr.P.C., copy of which is on record at page 21 of the paper book. In the aforesaid statement, the prosecutrix has supported the F.I.R. and has further stated that she was sitting in front of the house alone. Applicant called the prosecutrix to come and collect "Prasad". The prosecutrix went to the house of applican then she was dragged and thereafter her modesty was dislodged by committing rape upon her. Thereafter, prosecutrix was requested for her medical examination. The mother of the prosecutrix refused to give her consent for the same as according to her nothing wrong was committed with the prosecutrix. Copy of same is on record at page 26 of the paper book. During pendency of investigation, Investigating Officer made enquiry with regard to the age of the prosecutrix. As per the certificate issued by the Headmaster, Primary School, Malpura, Akola, Agra, the date of birth of the prosecutrix as recorded in School Record is 26.01.209. Occurrence giving rise to present applicant occurred on 27.07.2021. As such, the prosecutrix was aged about 12 years and few months on the date of occurrence. Ultimately, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. wherein the prosecutrix has rejoined her earlier statement under Section 161 Cr.P.C. During course of investigation, Investigating Officer came to the conclusion that complicity of applicant is established in the crime in question. He therefore submitted the charge sheet. After submission of the charge sheet, cognizance was taken upon same by concerned Magistrate. Resultantly, the trial procedure commenced. Upto this stage. P.W.-1 i.e. prosecutrix has been examined before court below. Her deposition before court below, has been brought on record as Annexure SA-1 to the supplementary affidavit.
9. Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused but he is innocent. Applicant has been falsely implicated in afore-mentioned case crime number. It is thus urged that applicant is liable to be enlarged on bail. He further submits that prosecutrix in her deposition before court below has not supported the F.I.R.. Attention of the Court was then invited to the consent refused by the mother of the prosecutrix for the internal/external medical examination of the prosecutrix as according to her nothing wrong was committed with the prosecutrix is on record at page 26 of the paper-book. On the above premise, he submits that no offence under Section 3/4 POCSO Act can be said to have been committed by applicant. 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 custody since 07.08.2021. As such, he has undergone almost two years of incarceration. The trial has already commenced but no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of the trial. On the cumulative strength of above, the learned counsel for applicant submits 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.
10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. the complicity of applicant in the crime in question is clearly established as per the statements of proseuctrix recorded under Section 161/164 Cr.P.C. However the proseuctrix in her examination-in-chief before court below has departed from her aforesaid statement. The learned A.G.A. has then invited the attention of the Court to the examination-in-chief of the prosecutrix, copy of which is on record at page 8 of the supplementary affidavit. On the above premise, the learned A.G.A. submits that there is an admission by the prosecutrix herself in her examination-in-chief that rape was committed upon her by applicant. Admittedly on the date of occurrence prosecutrix was aged about 12 years and 3 months. In view of above, the law laid down by Apex Court in X (Minor) Vs. The State of Jharkhand and Another ( 2022 Live Law (SC) 194, is squarely extracted in the present case. Prosecutrix is a young child aged about 13 years. Therefore, no sympathy be shown by this Court in favour of applicant. It is thus urged by the learned A.G.A. that present applicant for bail is liable to be rejected.
11. When confronted with above, the learned learned counsel for applicant could not overcome the same.
12. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicants and also the submission urged by the learned A.G.A. in opposition to the present application, which could not be dislodged by the learned counsel for applicant with reference to record at this stage but without expressing any opinion on the merits of the case, this Court does not find any good ground to enlarge the applicant on bail.
13. As a result, present application for bail fails and is liable to be rejected.
14. It is, accordingly, rejected.
Order Date :- 14.7.2023 YK