Allahabad High Court
Gulshan And Another vs State Of U.P. And 3 Others on 6 December, 2022
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31766 of 2022
Applicant :- Gulshan And Another
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Chandra Shekhar Mishra, Deepak Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav, J.
Supplementary affidavit has been filed today on behalf of learned counsel for the applicant, is taken on record.
Heard Mr. Chandra Shekhar Mishra, learned counsel for the applicants, Mr. R.P. Mishra, learned Additional Government Advocate for the State and perused the material available on record.
By means of this application, the applicants are seeking enlargement on bail during the trial in Case Crime No.45 of 2022, under Sections 363 A, 376 (2) IPC and 2/4 POCSO Act, Police Station Kotwali City, District Bijnor.
In short, the facts in brief are that the first information report of this incident was lodged by the father of the victim, namely, Afsar, against the applicants, namely, Kallee and Gulshan with the allegation that five months ago, Kallee, the applicant no.2 forcibly taken away her daughter, namely, Shabana, who is paralyse and mentally weak, from Bijnor and handed over to his brother Gulshan, the applicant no.1 at Ladhaura Laskhar, Rudki where applicants have committed rape upon her. It is further alleged that the applicants have also committed maarpeet with the victim and victim was compelled to beg and when she refused, the applicants have committed maarpeet with the victim again.
The submission of learned counsel for the applicants is that the applicants are quite innocent and have been falsely implicated in the present case with the ulterior motive. The applicants have never committed any offence as alleged against them in the impugned FIR. As per medical report, the victim was found aged about 18 years at the time of alleged incident, therefore, no offence under the POCSO Act is made out against the applicants. Further submission is that during trial, the victim has not supported the prosecution story and turned hostile. No alleged offence is made out against the applicants. Several other submissions in order to demonstrate the falsity of the allegations made against the applicants have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. The applicants are languishing in jail since 25.01.2022 having no previous criminal history.
Per contra, Mr. R.P. Mishra, learned A.G.A. has vehemently opposed the prayer for bail to the applicants and has submitted that the victim in her statement recorded under Section 164 Cr.P.C. has fully supported the prosecution story. The victim has clearly stated in her statement that the applicants have assaulted her and committed rape upon her. She has further stated that she was having pregnancy of three months. Prima facie, the offence is made out against the applicants.In support of his submission, Mr. Mishra, learned Additional Government Advocate has relied upon the judgment in the case of Khujji @ Surendra Tiwari vs. State of Madhya Pradesh 1991(3) SCC 627.
In the case diary, provided by learned Additional Government Advocate which is taken on record, in which at page no.87, it is clearly mentioned in Supplementary Medico Legal Report that the victim was having pregnancy of three months as per USG Lower Abdomen. Statement of the victim recorded under Section 164 Cr.P.C. clearly shows that Kallee, the applicant no.2 forcibly taken away the victim Shabana from Bijor and handed over to his brother Gulshan at Ladhaura Laskhar, Rudki where both applicants have committed rape upon her. Victim has also stated in her statement that the applicants have also compelled to beg and when she refused, she has been beaten again and again.
The accused-applicants are named in the impugned FIR and there is no reason to disbelieve the statement of the victim recorded under Section 164 Cr.P.C. in which the victim has clearly stated that the applicants have committed rape upon her. Offence is very heinous in nature, hence, require no indulgence.
Considering the facts and circumstances of the case as well as submission advanced by learned counsel for the parties, nature of allegations, gravity of offence and all attending facts and circumstances of case, the Court is of the opinion that it is not a fit case for grant of bail to the applicants.
Accordingly, the bail application is rejected.
However, keeping in view the period of detention of the applicants, learned trial Court is directed to expedite the trial and to decide the same expeditiously, preferably within a period of six months from the date of production of certified copy of this order.
A copy of this order be forwarded to the concerned court below for necessary compliance.
Order Date :- 6.12.2022/Ajeet
