Allahabad High Court
Jitendra vs State Of U.P. on 15 December, 2023
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:237643
Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22461 of 2023
Applicant :- Jitendra
Opposite Party :- State of U.P.
Counsel for Applicant :- Sapan Kumar Singh,Murli Dhar Yadav,Pramod Kumar Pandey,Satya Prakash Singh
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Rejoinder affidavit filed today is taken on record.
3. Sri Anit Kumar Shukla, learned A.G.A. has informed that the notice to the informant has been served on 15.05.2023.
4. Heard Sri Pramod Kumar Pandey, learned counsel for the applicant, Sri Anit Kumar Shukla, learned A.G.A. for the State as well as perused the material placed on record.
5. Applicant seeks bail in Case Crime No.112 of 2022, under Sections 376-AB I.P.C. & 5M/6 Protection of Children From The Sexual Offence Act, Police Station Sujanganj, District Jaunpur, during the pendency of trial.
6. This is the second bail application on behalf of the applicant. The first one was rejected by this Court vide order dated 04.01.2023 passed in Criminal Misc. Bail Application No.32959 of 2022.
PROSECUTION STORY:
7. The informant instituted an FIR at Police Station Sujanganj, District Jaunpur with allegations that his minor daughter, aged about 10 years, has been sexually assaulted by some unknown persons in the night of 07.06.2022 when she had gone to see a marriage procession.
RIVAL CONTENTIONS
(Arguments on behalf of applicant)
8. Learned counsel has stated that as a new ground, four witnesses of fact have been examined and none of them have supported the prosecution story including the prosecutrix, who has been examined as PW-3.
9. Learned counsel has further stated that the applicant has been falsely implicated in the present case. The applicant has no previous criminal history except a case foisted on him under Section 25 of Arms Act at the time of his arrest by police as it was the applicant who had sustained gun-shot injury to his leg in the said police party firing.
10. PW-1 is the informant/father of the prosecutrix and has not supported the prosecution story during his cross-examination.
11. PW-2 is the mother of the informant, who has also not supported the prosecution story and has been declared hostile by the public prosecutor and cross-examined by him.
12. PW-3 is the prosecutrix who has not supported the prosecution story, but she has not been declared hostile by the public prosecutor rather she has been cross-examined by the counsel for the applicant.
13. PW-4 is another child witness, aged about 12 years, who happens to be the friend of the prosecutrix and has not supported the prosecution story.
14. Learned counsel for the applicant has further stated that under these circumstances, there is no likelihood of conviction in the instant matter, as such the applicant is entitled for bail. He is languishing in jail since 09.06.2022.
(Arguments on behalf of informant/State)
15. Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that PW-1/informant had categorically implicated the applicant in his examination-in-chief recorded on 18.01.2023 and the case was adjourned on that day. On 02.02.2023, i.e. about 15 days after the date of incident, the witness was cross-examined and he has not supported the prosecution story during his cross-examination taken up by the counsel for the applicant.
16. Learned A.G.A. has further stated that a very lethargic prosecution has been taken up as the public prosecutor has not cared to cross-examine the witness as he had not supported the prosecution story.
17. PW-2, who is the mother of the prosecutrix, has stated during her examination-in-chief that her daughter was subjected to sexual assault, and she had admitted the fact that her daughter was shown the photographs of certain persons, including the person who was flying the drone camera (called helicopter camera by her).
18. Learned A.G.A. has further stated that this prosecution witness has been declared hostile by the public prosecutor on 09.06.2023 and she has been cross-examined.
19. Learned A.G.A. has further stated that as far as the statement of the prosecutrix is concerned, she has stated about the sexual assault was committed to her and has also admitted the fact that she had given her statement before the Magistrate, which was recorded under Section 164 Cr.P.C., whereby she has even identified her photographs and signatures on it. Learned A.G.A. has further stated that the applicant is not entitled for bail as there is enough evidence as far as the statements of PW-1, PW-2 and PW-3 if taken conjointly.
20. The factum of identification of the applicant has to be taken care of as the time of pronouncement of judgment. The lethargic attitude towards the trial taken by the public prosecutor cannot be of any help to the applicant. The moot question is that the defence has failed to bring forth any evidence of false implication of the applicant.
CONCLUSION:
21. It is an established fact that PW-1 has stated during his examination-in-chief that it was the applicant who had committed rape with the victim and he was the person who was operating the said drone camera on the date of incident. It is also stated by the witnesses, namely, PW-1 and PW-2, that the said drone camera was seen by them for the first time on the date of incident.
22. It is ironical that PW-1 and PW-3 have not been cross-examined by the public prosecutor as is indicative from the statements of the witnesses filed by the counsel for the applicant. The said act of the public prosecutor is deprecated. Even the Trial Court concerned did not care to ask questions from the witnesses to unearth truth and has failed in it's duty as per Section 165 of the Indian Evidence Act, 1872.
23. After hearing learned counsel for the parties and taking into consideration the fact that there is ample evidence on record against the applicant coupled with the fact that the age of the victim was barely 10 years at the time of offence, I do not find it a fit case for grant of bail to the applicant.
24. The bail application is found devoid of merits and is, accordingly, rejected.
25. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 15.12.2023
Ravi Kant
(Krishan Pahal, J.)
