Neeraj Raidas vs State Of U.P. Thru. Secy. Home ...
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Allahabad High Court

Neeraj Raidas vs State Of U.P. Thru. Secy. Home ... on 31 May, 2024

Author: Rajesh Singh Chauhan

Bench: Rajesh Singh Chauhan

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2024:AHC-LKO:41459
 
Reserved
 
AFR
 
Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10123 of 2022
 

 
Applicant :- Neeraj Raidas
 
Opposite Party :- State Of U.P. Thru. Secy. Home Deptt.Lko. And 3 Others
 
Counsel for Applicant :- Vijay Kumar,Alok Kumar Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajesh Singh Chauhan,J.
 

1. Heard Shri Alok Kumar Mishra, learned counsel for the applicant and Shri Rajnish Kumar Verma, learned A.G.A., however, no one has appeared on behalf of the informant/ complainant.

2. As per learned counsel for the applicant, the present applicant is in jail since 02.05.2022 in Case Crime No.227 of 2022, under Sections 323, 376 IPC and Section 3/4 POCSO Act, Police Station- Bilgram, District- Hardoi.

3. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. As per prosecution story so narrated in the FIR, the present applicant has made wrong deeds with the daughter of the complainant/ informant, who is aged about eighteen years. As per the FIR, when the daughter of the complainant at about 8.00 P.M. went to defecate in the field, at that time the applicant came there and committed rape forcibly with her.

4. Learned counsel for the applicant has further submitted that the entire prosecution story is false and concocted inasmuch as the prosecutrix is major in age and she is the consenting party with the applicant and the prosecutrix is mentally fit but she is unable to speak and due to this reason, false and fabricated story was developed by the complainant against the present applicant.

5. Learned counsel for the applicant has further drawn attention of this Court towards Annexure No.5 of the bail application, which is the statement of the prosecutrix recorded under section 164 Cr.P.C., wherein her statement has been recorded under pressure of her family members and this fact also reveals from the perusal of statement under Section 164 Cr.P.C. where she first time stated that the applicant has torn her cloths.

6. Learned counsel for the applicant has also submitted that the prosecution has not submitted any educational document of the prosecutrix and only on the basis of Aadhar Card and Medical Report, Section 3/4 POCSO Act has been added.

7. Learned counsel for the applicant has reiterated that the present applicant has no previous criminal history, therefore, the present applicant undertakes that he shall not misuse the liberty of bail, if so granted by this court and shall abide by all terms and conditions of the bail order and shall cooperate in the trial proceedings.

8. Learned A.G.A. has opposed the aforesaid prayer of learned counsel for the applicant and has submitted that the offence in question is so heinous in nature, therefore, the present applicant may not be released on bail. He has drawn attention of this Court towards Annexure No.5 of the bail application, which is the statement of the prosecutrix recorded under section 164 of Cr.P.C., wherein in the presence of special instructor, the victim/prosecutrix after seeing the photocopy of driving licence of the applicant has identified that he is the one who tore my cloth and forcibly committed rape.

9. Learned A.G.A. has further drawn attention of this court towards Annexure No.6, which is the copy of medical report, wherein the radiological age of the victim/prosecutrix is about 17 years. Hymen was not found, which supports the prosecution story, and also the statement of the prosecutrix/victim recorded under section 164 Cr.P.C has reiterated the version of statement recorded under section 161 Cr.P.C, therefore, the present applicant may not be released on bail.

10. Having heard learned counsel for the parties and having perused the material available on record, at the very outset, I would like to observe that the prosecutrix/ child, who was below 18 years at the time of incident, recorded her statements under Section 164 Cr.P.C. levelling specific allegation against the present applicant of committing rape with her. The entire statement recorded under Section 164 Cr.P.C. is read, the fact would emerge that in such statement, she has levelled specific allegation of rape against the present applicant.

11. In the statement of the prosecutrix/ child recorded under Section 164 Cr.P.C., she has levelled specific allegation against the present applicant that he has committed rape with her forcibly. This is the case where the prosecutrix/ child is a minor girl, therefore, the applicant with the intention to commit rape with her in that case, prima facie, the offence in question would be the offence of rape subject to final determination by the learned Trial Court.

12. The Apex Court in re; State of H.P. Vs. Asha Ram, (2005) 13 SCC 766, has observed in para-5, which reads as under:-

"5. We record our displeasure and dismay, the way the High Court dealt casually with an offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on minor girls. The High Court was swayed by the sheer insensitivity, totally oblivious of the growing menace of sexual violence against minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now a well-settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital, unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also a well-settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under the given circumstances. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."

13. The Apex Court in re; Ganesan Vs. State represented by its Inspector of Police, (2020) 10 SCC 573, while considering the judgments of Vijay v. State of M.P., (2010) 8 SCC 191, State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, State of U.P. Vs. Pappu, (2005) 3 SCC 594, State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, State of Orissa v. Thakara Besra, (2002) 9 SCC 86 and Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 has observed that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

14. In the case of Pappu (supra), the Apex Court has held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion and that consent should be free consent.

15. The Apex Court in re; Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74, has considered the judgment of Sham Singh vs. State of Haryana, (2018) 18 SCC 34, wherein the Apex Court has observed that the testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.

16. Therefore, considering the facts and circumstances of the present case as well as the dictums of the Apex Court, as considered above, I am not inclined to grant bail to the present applicant.

17. Accordingly, the bail application is rejected.

18. Since the present applicant is in jail since 02.05.2022 and the trial in POCSO cases should be conducted and concluded with expedition, preferably within a period of one year in terms of Section 35 (2) of the POCSO Act, therefore, I hereby direct the learned Trial Court to conclude the trial within a period of nine months from the date of receipt of copy of this order taking recourse of Section 309 Cr.P.C. by fixing short dates, if possible, fix dates on day-to-day basis to ensure that the examination of all prosecution witnesses and other witnesses from both the sides, if any, be completed expeditiously and if any of the witnesses does not cooperate in the trial proceedings properly, the learned Trial Court may take appropriate coercive steps against such witness, which is permissible under the law. Further, no unnecessary adjournment shall be given to any of the parties so that the trial in question could be concluded within the time so stipulated.

19. However, liberty is given to the applicant to file another bail application, if the trial is not concluded within the aforesaid stipulated time.

20. Let copy of this order be provided to the learned Trial Court through District & Sessions Judge, Hardoi by the Registry of this Court within three working days for its strict compliance.

21. Before parting with, I appreciate the efforts and research made by Shri Piyush Tripathi, Research Associate attached with me, in finding out the relevant case laws applicable in the present case.

[Rajesh Singh Chauhan,J.]

Order Date :- 31.5.2024

Mohd. Sharif