Allahabad High Court
Jabir vs State Of U.P. on 19 July, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Judgment reserved on 14.7.2021.
Delivered on 19.7.2021.
Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8793 of 2019
Applicant :- Jabir
Opposite Party :- State of U.P.
Counsel for Applicant :- Zafar Abbas
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for the applicant and the learned A.G.A. Perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.247 of 2018, under Section 376-D I.P.C., Police Station-Mainather, District-Moradabad after rejection of his Bail Application vide order dated 7.1.2019, passed by learned Sessions Judge, Moradabad.
3. Victim herself lodged an F.I.R on 8.8.2018 against two persons (namely Zihan and one unknown) that she is a widow, who is living with her daughter and carrying her livelihood on begging. On 5.8.2018, at about 7:00 P.M., two persons came on motorcycle and by force took her by putting country made pistol on her head to a house and raped her. One accused has told his name as Zishan and other accused was addressed as his brother in law, the owner of the house. They dropped her on next day about 4:00 AM
4. The victim in her statement recorded under Section 164 Cr.P.C. has stated that one accused has raped her 4 times and other 6 times. There were many bangles at the house where she was raped. The Doctor has opined that 'sexual violence cannot be ruled out.'
5. During investigation, victim has identified both the accused by their photographs. One accused was identified by name Faizan who had shop of bangles and the present applicant as Jabir. After investigation, charge-sheet is filed against both the accused.
6. (i) Learned counsel for the applicant submitted that applicant is not the person, who was alleged to be named as Jishan in F.I.R as well as in the statement of the victim.
(ii) Independent witnesses have denied about alleged occurrence of taking victim by force on a motorcycle. It is to note that alleged place was a busy place.
(iii) No identification parade was conducted. Victim had not replied to certain questions asked by I.O. Even Investigating Officer had initially found the story to be doubtful.
(iv) Prosecution story is not supported by medical evidence.
(v) Co-accused Faizan Ashraf has been granted bail by co-ordinate Bench of this Court vide order dated 5.2.2020 passed in Criminal Misc. Bail Application No.49621 of 2019.
(vi) Applicant is falsely implicated in the present case. He is languishing in jail since 15.12.2018, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
7. Learned A.G.A. has opposed the bail application and submitted that victim is a widow and a begger. She, in her statement recorded under Section 164 Cr.P.C. had specifically attributed repeated offence of rape on both the accused. Delay of 3 days in lodging the F.I.R. cannot be considered huge delay considering that the victim was raped and she is a widow living with her one small child. Parity cannot be claimed on the basis of an order which has not assigned any reason in support of granting bail. Victim has disclosed the name of the applicant and co-accused only on the basis of their conversation during occurrence. During investigation, she has identified them by photograph.
8. (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
9. In the present case, victim a widow a begger and a mother of a small child, who was abducted and raped repeatedly by the applicant and the co-accused. In case of conviction under Section 376-D I.P.C., minimum sentence is of 20 years, which may extend up to life.
10. Considering the status and living condition of the victim, delay of three days in lodging the First Information Report could not be considered as a long delay. Parity alone is not a ground of bail. It is apparent that some material facts were not brought before the co-ordinate Bench. Prosecution case cannot be doubted only on the ground that some witnesses have stated that they have not witnessed the incident when accused person abducted the victim.
11. Considering the status of the victim, there is likelihood that the applicant may try to influence the victim, in case bail is granted.
12. No case of bail is made out.
13. Accordingly, this bail application is rejected.
Order Date:-19.7.2021
SB
