Allahabad High Court
Kajari (Kinnar) vs State Of U.P. on 27 February, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59874 of 2022 Applicant :- Kajari (Kinnar) Opposite Party :- State of U.P. Counsel for Applicant :- Tej Om Prakash Gupta Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Tej Om Prakash Gupta,, the learned counsel for applicant and the learned A.G.A. for State.
This is a repeat application for bail filed by applicant Kajari (Kinnar) seeking his enlargement on bail in Case Crime No. 117 of 2021, under sections 452, 363, 366, 323, 506 370 (4), 370 (ka), 109 r/w 376 IPC and 17 17 r/w, 3/4 POCSO Act, 3(2)(5) SC/ST ACt Police Station- Tundla, District Firozabad.
Record shows that first bail application of applicant alongwith co-accused Smt. Bhuttan @ Mahak was rejected by this Court vide order dated 5.3.2022. For ready reference, same is reproduced herein under:
"Heard Mr. Vijay Tripathi, the learned counsel for applicant in Criminal Misc. Bail Application No.41132 of 2021 (Kajri Kinnar Vs. State of U.P.), Mr. M D. Shah, the learned counsel for the applicant in Criminal Misc. Bail Application No.42041 of 2021 (Smt.Bhuttan @ Mahak Vs. State of U.P.) and the learned A.G.A. for State in both the bail applications.
These applications for bail have been filed by applicants Smt. Bhuttan @ Mahak and Kajri (Kinnar) seeking their enlargement on bail in Case Crime No.117 of 2021, under Sections 452, 363, 366, 323, 506, 370(4), 370(Ka), 109 r/w 376 I.P.C., Sections 17 r/w 3/4 POCSO Act and Sections 3(2)(5) of SC/ST Act, Police Station Tundla, District Firozabad during the pendency of trial.
Perused the record.
On 17.12.2021 this Court passed following order in Criminal Misc. Bail Application No.41132 of 2021 (Kajari (Kinnar) Vs. State of U.P.).
"Sri Vijay Tripathi, learned counsel for the applicant and Sri Satish Kumar Singh, learned AGA for the State are present.
Let notice be issued to opposite party no.2/complainant through C.J.M., Firozabad, returnable within three weeks.
Let the matter be listed in the week commencing 17.01.2022 as fresh."
Subsequent to above order dated 17.12.2021, office has submitted a report dated 19.01.2022. Perusal of report submitted by concerned C.J.M. goes to show that notice of present bail application has been served upon first informant. However in spite of service of notice, no one has put in appearance on behalf of first informant to oppose this application for bail.
It transpires from record that in respect of an incident, which is alleged to have occurred on 08.03.2021, a prompt F.I.R. dated 08.03.2021 was lodged by first informant Smt. Soni (mother of prosecutrix) and was registered as Case Crime No.117 of 2021, under Sections 452, 363, 366, 323, 506 I.P.C., Police Station Tundla, District Firozabad. In the aforesaid F.I.R., four persons namely; Smt. Mridula Dixit, Golu, Bhuttan and Kajri (Kinnar) have been nominated as named accused.
According to the prosecution story as unfolded in F.I.R., it is alleged that on 08.03.2021 at around 7:30 p.m., named accused Mridula Dixit, Golu, Bhuttan and Kajri (Kinnar) came to the house of the first informant. Named accused Mridula Dixit requested the first informant to open the door. As she opened the door, other named accused entered the house of first informant. First informant is alleged to have been caught by Kajri (Kinnar), thereafter, named accused Bhuttan is alleged to have assaulted first informant and they thereafter, forcibly took away the minor niece of first informant namely; Renu aged about 15 years. The F.I.R. further states that previously also such attempt was made by named accused.
After registration of aforementioned F.I.R., Investigating Officer proceeded with the statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The prosecutrix was recovered on 23.04.2021. Thereafter, the statement of prosecutrix was recorded under Section 161 Cr.P.C. by Investigating Officer. Same is on record as Annexure-2 to the affidavit. Prosecutrix in her aforesaid statement has supported the prosecution story as unfolded in F.I.R. She has further alleged that named accused Mriduala, Golu, Bhuttan and Kajri (Kinnar) had forcibly taken away the prosecutrix from the home of her Aunt (Chachi). Thereafter, modesty of prosecutrix was got dislodged by unknown persons repeatedly. Thereafter, the prosecutrix was medically examined. The prosecutrix in her statement before the doctor has reiterated her earlier statement under Section 161 Cr.P.C. Certain samples were taken from the body of the prosecutrix for further clinical/pathological examination, which shows positive results. Same is evident from page 32 of the paper book. As such, the medical evidence supports the prosecution story as unfolded in F.I.R. Ultimately, the statement of prosecutrix was recorded under Section 164 Cr.P.C., wherein again, the prosecutrix has supported the prosecution story as unfolded in F.I.R. and also her earlier statement under Section 161 Cr.P.C. as well as the statement given before the doctor. Same is on record as Annexure-5 to the affidavit.
Investigating Officer upon completion of statutory investigation of aforementioned case crime number has ultimately submitted the charge-sheet dated 30.07.2021 whereby two of the named accused namely; Smt.Bhuttan @ Mahak and Mridula Dixit, whereas investigation was said to be pending against other named accused. The charge-sheet in respect of other two accused has been submitted on 28.10.2021.
Mr. M D. Shah, the learned counsel for applicant has filed written argument in support of Criminal Misc. Bail Application No.42041 of 2021 (Smt.Bhuttan @ Mahak Vs. State of U.P.), For ready ready reference same is reproduced hereinunder:-
"1. That aforesaid bail application listed before this Hon'ble Court on 17.02.2022, at the time of argument this Hon'ble Court has been pleased to direct the counsel for the applicant to file the written argument hence, the written argument is being given below as under:-
2. That in the aforesaid case Smt. Mridula Dixit was main accused in the aforesaid case the applicant is the daughter of the main accused Smt. Mridula Dixit she was married and resided with her husband and she has three minor child and one male child of two years, enlarge in jail with the applicant.
3. That the applicant is resided with her husband in District Agra and applicant has no concern with her mother.
4. That it is submitted that Smt. Mridula Dixit is elected Sabhasad in the local area last ten years and she participate and active in the politics and used to protect ill-treating behaviour of police to the member of the locality as such the concern police keep enmity with the mother of the applicant that what happened in this case the victim has gone with the one co-accused namely Sahky.
5. That the incident has been taken place on 08.03.2021 and victim was herself recovered on 23.04.2021 after gap of one and half months and she was produced before the police station by the informant due to enmity of the police personnel this story has been developed step to step.
6. That the victim was medically examined on 27.04.2021, she has given the statement before the doctor that she has gone with the co-accused Shaky. At the time of examination, there is no allegation against the applicant, it will revealed from the medical report.
7. That at the first time the victim has stated she has gone with the co-accused Shaky and no allegation has been made against the applicant and other co-accused persons.
8. That the informant lodged FIR against the applicant and other co-accused persons due to enmity behind the reason is that the parents of the victim had died and informant has started ill-treating behaviour with the victim on account of this, the mother of the applicant has protected to her from the informant as such, she also keep enmity and lodged F.I.R. however, she has supported the prosecution case under Section 161 Cr.P.C. but the additional statement of the informant has been recorded in which the new story has been developed and the allegation of the FIR is not been supported.
9. That the victim has been examined under Section 161 Cr.P.C. she has supported the prosecution case however, the additional statement of the victim has been recorded the second time.
10. And thereafter the victim has examined under Section 164 Cr.P.C. she has stated that she has become pregnant and supported the prosecution case and thereafter again the additional statement of the victim has been recorded in which the new story has been developed and stated that she has gone with the co-accused Shaky wherefrom she tried to commit suicide and thereafter some part of prosecution has supported again. Second additional statement of the prosecutrix has been recorded then the Investigating Officer has enquired with regard to earlier statement and enquired that whether you have become pregnant, you have any evidence for this then she stated that there is no miscarriage and she was never pregnant and this fact has been stated due to angry and she refused the earlier statement as such the story of the prosecution case has been developed step to step. The mother of the applicant is a Sabhasad in the local area. The police personnel used to keep enmity and the informant also used to keep enmity on account of mother of the applicant has protected to the victim from the informant for this story has got developed.
11. When the statement of the informant has been recorded at the first time she has supported the prosecution case but the additional statement that the additional statement she has developed the new story and stated that which team has gone with one boy namely; Shaky as such type of statement and later on she has refused the allegation of the pregnancy. She has never pregnant that the applicant is innocent and resided separately from the main accused mother of the applicant in District Agra."
Same arguments have been adopted by Mr. Vijay Tripathi, the learned counsel for applicant in support of Criminal Misc. Bail Application No.41132 of 2021 (Kajri (Kinnar) Vs. State of U.P.).
It is further submitted that applicants have clean antecedents, inasmuch as they have no criminal history to their credit except the present one. Applicants are in jail since 05.08.2021/22.07.2021. As such, they have undergone sufficient incarceration. On the aforesaid premise, learned counsel for applicants contends that applicants are liable to be enlarged on bail. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. for State has opposed these applications for bail. He contends that applicants are named as well as charge-sheeted accused in the present case and therefore, they do not deserve any sympathy of this Court. Medical evidence clearly supports the prosecution story a unfolded in F.I.R. There is no such material on the basis of which false implication of present applicants by the prosecutrix can be inferrred. The prosecutrix is a young girl aged about 16 years, as is evident from the medical report of the prosecutrix. There is no other educational certificate of the prosecutrix available on record, on the basis of which, it can be said that the prosecutrix is above 16/18 years of age. Learned A.G.A. then referred to the judgment of Supreme Court in the case of Ex-minor Vs. State of Jharkhand and Another 2022 Live Law (Supreme Court) 194 and on the basis thereof, he contends that no indulgence be granted by this Court in favour of applicants.
Having heard learned counsel for applicants, learned A.G.A. for State, upon perusal of record accusations made and complicity of accused- applicants, this Court does not find any good ground to enlarge the applicants on bail.
In view of above, present applications for bail fail and are, therefore, liable to be rejected.
They are accordingly rejected. "
Learned counsel for applicant submits that applicant is in jail since 5.8.2021. As such, she has undergone more than one year and seven months of incarcerations. It is then contended that two other co-accused Vishal and Shanky have already been enlarged on bail. The case of present applicant is similar and identical to that of other co-accused. As such, applicant is also liable to be enlarged on bail on the ground of parity. There isno idstinguishing feature on the basis of which the case of present applicant could be distinguished from co-accused who have been enlarged on bail so as to deny her bail.
Per contra, the learned A.G.A. has opposed the present application. Learned A.G.A. submits from the perusal of F.I.R. it is evidence that the role of kidnapping of minor is assigned to applicant and co-accussed Smt. Bhuttan @ Mahak. As such case of present applicant is different from other co-accused. The period of incarceration undergone by applicant is immaterial as offence complained of is also punishable under section 3/4 is irrelevant. As such, applicant does not deserve any indulgence by this Court.
When confronted with above, learned counsel for applicant could not overcome the same.
Resultantly, application fails and is liable to be rejected.
It is accordingly rejected.
Order Date :- 27.2.2023 Arshad