Allahabad High Court
Ashraf Khan vs State Of Up And 3 Others on 24 February, 2025
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:25776
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39114 of 2024
Applicant :- Ashraf Khan
Opposite Party :- State Of Up And 3 Others
Counsel for Applicant :- Prem Prakash
Counsel for Opposite Party :- G.A.,Shiv Prakash
Hon'ble Sanjay Kumar Singh,J.
1. Heard Mr. P.K. Singh, learned counsel appearing on behalf of the applicant, Mr. Rabindra Kumar Singh, learned Additional Government Advocate, assisted by Mr. Prashant Kumar Singh, learned Brief Holder representing the State and Mr. Shiv Prakash, learned counsel appearing on behalf of the informant/opposite party No. 2.
2. By means of this application under Section 439 of Cr.P.C., applicant-Ashraf Khan, who is involved in Case Crime No. 158 of 2024, under Sections 376(DA), 506 I.P.C., Section 5(G)/6 POCSO Act and Section 67 of Information Technology (Amendment) Act, Police Station Adlahat, District Mirzapur, seeks enlargement on bail during the pendency of trial.
3. Brief facts of the case, which are required to be stated are that the complainant, who is father of victim lodged a first information report on 08.08.2024 against Aariv alias Akib stating inter alia that on 30.05.2024, his daughter aged about 16 years had gone to the house of his brother-in-law (sonu) for a wedding ceremony, where on 31.05.2024 at around 3:00 am Aariv called his daughter on some pretext and forcibly made physical relation with her in a room and after doing so he threatened her by saying that if she tells anyone, she will lose her life. He also made her video, which was made viral.
4. Main substratum of argument of learned counsel for the applicant is that applicant is not named in F.I.R. Applicant has been falsely implicated in this case without any credible evidence against him. There are contradictions in the F.I.R. and statement of the complainant. During investigation, victim has made false allegation against him. So far as obscene video of victim is concerned, it is argued that the Investigating Officer has not recovered the mobile phone of the applicant, hence it cannot be said that the said video was made from the applicant's mobile phone and due to want of recovery of said mobile phone, the original source of obscene video is not on record. Placing reliance upon the judgment of Hon'ble the Apex Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and others, (2020) 7 SCC 1, it is further submitted that alleged obscene video is not admissible in evidence as there is no certificate under Section 65B of the Evidence Act, hence the same cannot be relied upon. It is also argued that victim is cousin (daughter of maternal aunt) of the applicant, therefore, there was no occasion for the applicant to forward her obscene video to Zubair Khan. He further submits that statement of the informant and victim has been recorded before the trial court as PW-1 on 13.01.2025 and PW-2 on 23.01.2025, in which they have been declared hostile and from their statements no offence is made out against the applicant, hence the applicant who is languishing in jail since 12.08.2024 may be enlarge on bail.
5. Per contra, learned Additional Government Advocate for the State as well as learned counsel for the informant/opposite party No. 2 opposed the prayer for bail of the applicant by contending that complicity of applicant came into light at the beginning of investigation in the statement of complainant. The victim in her statement under Section 180 of BNSS has also clearly stated that on 31.05.2024 applicant-Ashraf asked her for water. When she went into the room to get water, he locked the room from inside, Aaqib was already present there. Ashraf committed rape on her in the room, then Aaqib also did same. When Aaqib was committing rape, Ashraf was making her video from the phone. On trying to raise alarm, they covered her mouth. It is also pointed out that witness Zubair Khan in his statement has stated that said obscene video was forwarded by the applicant-Ashraf from mobile number 6388685913 to his mobile number 9026263639. Thereafter, Zubair Khan forwarded the said video to the father of victim. The said obscene video was given by the father of victim to the investigating officer, in which it was found that victim was being raped by Aaqib and her rape video was being made by Ashraf. It is next submitted that as per statement of victim recorded during investigation, Ashraf also committed rape on her. The said obscene video has been made part of case diary and same has been submitted along-with charge sheet to the concerned court below. They also relying upon the judgment of the Apex Court in the case of State of Karnataka Vs. T. Naseer @ Nasir @ Thandiantavida Naseer @ Umarhazi @ Hazi and Others, 2023 LiveLaw (SC) 965, submit that required certificate under Section 65B of the Evidence Act can be submitted even after submission of charge-sheet during trial. So far as statement of informant and victim recorded before the trial court is concerned, it is submitted that tone and tenor of their statements clearly reflect that they have been won over from the side of the accused. Lastly it is submitted that material evidence on record cannot be ignored, hence the bail application of the applicant is liable to be set-aside.
6. Having heard learned counsel for the parties and examined the matter in its entirety, I find that informant before the trial court has stated inter alia that he came to know about the obscene video of his daughter on 07.08.2024, when Zubair Khan forwarded the said video to him. The rape video of victim is also on record. From the statement of victim recorded during investigation and trial, it cannot be said that there is no evidence of rape on minor victim. After going through the statement of the minor victim recorded before the trial court, I find that she, in her statement, has also stated inter alia that she is giving her statement after arriving at settlement / compromise with applicant-Ashraf. Hence it is apparent on record that she has been won over from the side of accused-applicant (Ashraf). This Court is of the view that conclusion from the statement of any witness shall be drawn considering his/her statement as a whole not in isolation. This Court is also of the view that rape is the most heinous, hated, morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the helpless victim. It also shakes the spirit and very core of the life of the victim and leaves a permanent scar on her life.
7. Since the allegation of the prosecution and defence of the accused are still open to be urged before the trial court, therefore, this Court is not examining the statements of the witnesses meticulously so that the same may not affect the trial of the applicant.
8. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, age of victim, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.
9. Accordingly, the bail application is rejected.
10. It is made clear that the observations contained in the instant order are confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 24.2.2025
Kashifa
