Allahabad High Court
Gaurav vs State Of U.P. on 20 September, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:182215 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40886 of 2023 Applicant :- Gaurav Opposite Party :- State of U.P. Counsel for Applicant :- Vidit Narayan Mishra Counsel for Opposite Party :- G.A.,Ananya Upadhyay,Rakesh Chandra Upadhyay Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Vidit Narayan Mishra, learned counsel for the applicant, Sri Ananya Upadhyay, learned counsel for the first informant, Sri Devendra Nath Mishra, learned A.G.A. for the State and perused the record.
3. Sri Ananya Upadhyay submits that he has filed vakalatnama on behalf of the first informant in the office on 18.9.2023. The same is not on record. Office to trace it out and place the same on record and make a note about it in the order sheet.
4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Gaurav seeking enlargement on bail during trial in connection with Case Crime No.170 of 2023, under Sections 363, 452, 323, 506, 376AB IPC and 5/6 POCSO Act, registered at P.S. Jewar, District- Greater Noida Commissioner Gautam Budh Nagar.
5. The F.I.R. of the matter was lodged on 24.6.2023, under Sections 363, 452, 323, 506 I.P.C. by Deepak against the applicant and 4-5 unknown persons alleging therein that on 24.06.2023 at about 12:30 a.m. when he had returned from the fields, he saw 4-5 persons inside his house on which he asked them by shouting as to what they were doing inside, they on seeing him started running from there. Amongst them he apprehended one person named Gaurav, who assaulted him and tried to run away but in the meantime, on hearing noise, people of the locality collected there. He then checked his house where his daughter aged about 12 years was not present. He asked Gaurav about his daughter who then said that he may be released or else he would murder his daughter. He then called police on 112 and 1095 but numbers did not response. He then called on CUG number of the police station and informed the police. The F.I.R. has thus been lodged.
6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that subsequently the police shows the recovery of the victim on 24.6.2023 from the house of the applicant and mentions in the recovery memo that she was found under a Takhat in an unconscious state. It is argued that the said recovery memo does not state of time of recovery. It is further argued that the prosecution story is not believable inasmuch as the applicant is said to have been present in the house of the first informant and apprehended there but as to how his daughter reached to the house of the applicant is not clear. It is argued that the victim in the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. has not stated of the applicant committing any sexual assault on her. It is argued that the F.I.R. was lodged under Sections 363, 452, 323, 506 I.P.C. but during investigation Section 376AB I.P.C. and Sections 5/6 POCSO Act have been added. It is argued that charge sheet in the matter has been submitted against the applicant only under the said sections and as such there are no chances of the applicant tempering with the evidence or not co-operating in the investigation. Further it is argued that the victim, as a matter of fact, was not recovered from the house of the applicant but the police under the influence of the informant, has prepared the recovery memo which is not supported by any evidence of any independent witness, para-24 of the affidavit has been placed before the Court for the same. Learned counsel has further placed para-15 and 16 of the affidavit and has argued that on 08.3.2023 a quarrel took place between the family of the applicant and the family of the informant and again on 09.3.2023 and with regard to the said incident the father of the informant had made a complaint to the police after which the parties were challaned under Sections 107/116/151 Cr.P.C. It is argued that there was old enmity between the parties and as such implication of the applicant in the present case is false and concocted. It is argued that the applicant is in jail since 25.6.2023.
7. Per contra, learned AGA and learned counsel for the first informant vehemently opposed the prayer for bail and argued that the victim is aged about 11-1/2 years. It is argued that the victim was found in the house of the applicant in a room in an unconscious condition under Takhat and as to how she reached is not stated by the applicant. It is argued that the applicant was apprehended by the first informant from his house whereas 4-5 unknown accused persons ran away from there. It is argued that during investigation Section 376AB I.P.C. and the provisions of POCSO Act have been added and the charge sheet has been submitted under the said sections. It is argued that the victim is a minor girl. It is further argued that although the statement of the first informant has been annexed as Annexure No. 3 to the affidavit but the same is incomplete annexure as the questions and answers put by the Investigating Officer has not been annexed with it. Therefore, the bail application of the applicant be rejected.
8. After having heard learned counsels for the parties and perusing the records, it is evident that the victim is aged about 11-1/2 years. The applicant was apprehended by the first informant from his house. The applicant is named in the F.I.R., the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. The victim was recovered from the house of the applicant in an unconscious condition. Charge sheet in the matter has been submitted against the applicant.
9. Looking into the facts and circumstances of the case as well as nature and gravity of the offence, I am not inclined to release the applicant on bail.
10. The bail application is, accordingly, rejected.
(Samit Gopal,J.) Order Date :- 20.9.2023 Naresh