Allahabad High Court
Israr vs State Of U.P. And 3 Others on 17 May, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53131 of 2021 Applicant :- Israr Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Tarun Jha Counsel for Opposite Party :- G.A.,Lakshman Singh with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1435 of 2022 Applicant :- Imran Opposite Party :- State Of Uttar Pradesh Through Secretary Home Affair U.P. And Others Counsel for Applicant :- Hari Shukla,Abhishek Tiwari Counsel for Opposite Party :- G.A. Hon'ble Mohd. Aslam,J.
Heard Sri Tarun Jha, learned counsel for applicants, Sri Lakshman Singh, learned counsel for informant in Criminal Misc. Bail Application No.53131 of 2021 and Sri Sarveshwari Prasad, learned counsel for applicant, Sri Abhishek Tiwari, Advocate, holding brief of Sri Hari Shukla, learned counsel for informant in Criminal Misc. Bail Application No.1435 of 2022 and Sri R.P. Mishra, learned A.G.A. for the State-respondents and perused the record.
The instant bail applications have been filed under Section 439 of Cr.P.C. on behalf of applicants Israr and Imran seeking their enlargement on bail in Case Crime No.578 of 2021, under Sections 452, 376D I.P.C. & Section 5G/6 of POCSO Act, Police Station Kotwali Orai, District Jalaun, during pendency of the trial.
It is submitted by learned counsel for the applicant Israr that the role assigned to the accused Israr is of holding the hand of victim and the role of the rape was assigned to the co-accused Imran. It is further submitted that the first information report has been lodged after delay of three days. It is further submitted that there was only one room and it was not possible for the accused to commit rape in the same room in which other members of the family were sleeping. It is further submitted that the age of the victim was determined about 17 years on the basis of ossification test. It is further submitted that there is contradictions in the statements of the victim recorded under Sections 161 & 164 Cr.P.C. It is further submitted that no injury on the body or on the private part of the victim was found at the time of medical examination.
It is submitted by learned counsel for the applicant Imran that apart from the above mentioned submissions that there is contradiction in the statements of victim recorded under Sections 161 & 164 Cr.P.C. It is further submitted that in the statement recorded under Section 161 Cr.P.C., the victim has not alleged about the commission of rape upon her by the accused Imran and on the advice of counsel she has improved the version in statement under Section 164 Cr.P.C., wherein she has stated that the accused Imran has committed rape upon her. It is further submitted that no mark of injury was found on the body even on the private part of the victim. It is further submitted that doctor has not given any report regarding the rape in his opinion and has stated that the opinion cannot be given without report of FSL.
Learned A.G.A. for the State has opposed the bail applications of the applicants and has submitted that there is no contradiction in the statements recorded under Sections 161 & 164 Cr.P.C. It is further submitted that the first information report was lodged by the mother of the victim. It is further submitted that the age of victim is 16 years who has passed her high school in this year and studying in Class-XI, has gone for taking admission in Gautam Budh School and the accused Israr and Imran seeing her alone stopped her and were groping her and used to harass her which was opposed, but they did not report it. It is further submitted that on 18.8.2021 about 11:00 a.m. accused Israr and Imran entered into the house after removing Tattar and committed rape upon the victim and after hearing the sucks and cry of the victim the informant wake up and saw the accused fleeing from there and recognized them and tried to catch them, but they fled away by threatening her. The informant has further stated in the first information report that accused are resident of her Mohalla and were extending threat to her that is why she could not dare to give evidence against them, therefore, the first information report could not be lodged within time. It is further submitted that at the time of medical examination she has told to the doctor that in the night about 11-12 hours she had gone to toilet where the accused Israr pressed her mouth and put her to another room and accused Israr caught hold her hand and thereafter, accused Imran has committed rape upon her. She has also stated that she was also kicked by the accused and accused have threatened to kill her. It is further submitted that in medical report, it was found that hymen was old healed torn. It is further submitted that the version of prosecution is also corroborated with the statement of informant, who is eyewitness and has seen the accused fleeing from the place of occurrence. It is further submitted that the age of the victim as per school certificate was found 16 years 2 months and 28 days.
I have gone through the file. Keeping in view the facts and circumstances of the case, I do not find any ground to enlarge the accused on bail. Accordingly, the bail applications of the accused-applicants Israr and Imran is hereby rejected commonly.
Order Date :- 17.5.2022 Anil K. Sharma