Devish Raju v. State of U.P. and Another)

Applicant :- Devish @ Raju Opposite Party :- State of U.P. Counsel for Applicant :- Dushyant Singh,M.C. Singh,Pankaj Kumar Tyagi,Rakesh Kumar Srivastava,S.K. Verma Counsel for Opposite Party :- Anand Pati Tiwari,G.A. Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Rakesh Kumar Srivastava, learned counsel for the applicant, Sri Anand Pati Tiwari, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel for the State and perused the material on records.

3. This is second bail application of the applicant. The first bail application of the applicant was rejected by this Court vide order dated 14.09.2021 passed in Criminal Misc. Bail Application No. 18017 of 2021 (Devish @ Raju vs. State of U.P. and Another).

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Devish @ Raju, seeking enlargement on bail during trial in connection with Case Crime No. 87 of 2020, under Sections 363, 368, 376 IPC and Section 3/4 POCSO Act and Section 3(2)(v) SC/ST Act, registered at P.S. Sector 58 Noida, District Gautam Budh Nagar.

5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is submitted that the statement of the victim / prosecutrix has been recorded before the trial court as P.W.-2, the same has been placed before the Court which is annexed as Annexure-2 to the supplementary affidavit dated 10.01.2023. Learned counsel has submitted that the perusal of the statement of the victim goes to show that in her cross-examination she has stated that no such wrong incident was committed on her. It is submitted that looking to the said statement, the fact which comes out is that the applicant has been falsely implicated in the present case. The applicant has no bad antecedents as stated in para 25 and is in jail since 13.10.2020.

6. Per contra, learned counsel for the first informant and learned counsel for the State vehemently opposed the prayer for bail. It is submitted that the first bail application of the applicant has been rejected by this Court on merits vide order dated 14.09.2021. It is submitted that in so far as the victim / prosecutrix is concerned, she was examined as P.W.-2 before the trial court and in her examination-in-chief conducted on 02.01.2023 she has specifically stated that the applicant established physical relationship with her and on finding way she ran out and then asked for help from her uncle. It is submitted that subsequently on the next day the victim was cross-examined who states that no such wrong incident had taken place with her which is clearly tampering with evidence. It is submitted that the victim is a minor girl who supports the prosecution case in her examination-in- chief. It is submitted that the bail of the applicant be thus rejected.

7. After having heard learned counsel for the parties and perusing the record, it is evident that this is second bail application of the applicant. The first bail application was rejected by this Court vide order dated 14.09.2021, the same is extracted herein below:- "Learned counsel for the first informant states that although he had sought time for filing counter affidavit on 26.08.2021 but he does not intend to file any counter affidavit. Heard Sri Radhey Shyam Shukla, Advocate holding brief of Sri Shyam Sudarshan, learned counsel for the applicant, Sri Anand Pati Tiwari, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Devish @ Raju, seeking enlargement on bail during trial in connection with Case Crime No. 87 of 2020, under Sections 363, 368, 376 IPC and Section 3/4 POCSO Act and Section 3(2)(v) SC/ST Act, registered at P.S. Sector 58 Noida, District Gautam Budh Nagar. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the First Information Report was registered under Section 363 IPC by the mother of the prosecutrix stating therein that on 05.03.2020 at about 04:30 PM her daughter had gone for tuition but did not come back. On 06.03.2020 at about 09:00 AM she called her on her mobile phone and told her that three boys have taken her and she will return by 10:00 AM but still she did not come back. It is argued that the prosecturix went to the police Station on 15.03.2020 and told that she is aged about 19 years and she has come to know that her mother has got a First Information Report registered. Further, in her statement under Section 161 Cr.P.C. she has stated that she went on 05.03.2020 with the applicant on a motor bike and then they lived in a room which was taken on rent. She went out of her own sweet will without any pressure. It is argued that on a specific question by the Investigating Officer as to whether any illegal act was committed on her, she replied in negative. It is further argued that an afterthought subsequently in her statement under Section 164 Cr.P.C. she stated that she was raped by the applicant. Learned counsel has argued that the victim was subjected to medical examination and ascertainment of age wherein the Chief Medical Officer, Gautam Budh Nagar has opined that she is aged about 18 years. It is argued that as such the implication of the applicant in the present case is false and the prosecutrix is a major girl who had gone with the applicant out of her own sweet will. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the prosecutrix is a minor girl and as per the school records, her date of birth is recorded as 16.06.2003 and as such on the date of occurrence i.e. on 05.03.2020 she was a minor. It is argued that she has stated that in her statement under Section 164 Cr.P.C. that the applicant committed rape on her. It is further argued that since there is a date of birth in the school documents the same will have prevalence over the age certificate issued by the Chief Medical Officer. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected. After having heard learned counsels for the parties and perusing the records, it is evident that as per the school records, the prosecutrix is a minor girl. The consent of a minor is of no worth. There are allegations of rape in the statement under Section 164 Cr.P.C. of the prosecutrix against the applicant. I do not find it a fit case for bail. Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail. The bail application is, accordingly, rejected. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."

8. The victim in her examination-in-chief supports the prosecution case and specifically states of the applicant establishing physical relationship with her. She is a minor girl. The appreciation of statement of the victim is for the trial court to do at the appropriate stage. No ground for bail exists.

9. Looking to the facts and circumstances of the case, this Court does not find it a fit case for bail, hence, the bail application is rejected.

10. Pending application (s), if any, shall stand disposed of. Order Date :- 14.2.2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad

Applicant :- Devish @ Raju Opposite Party :- State of U.P. Counsel for Applicant :- Dushyant Singh,M.C. Singh,Pankaj Kumar Tyagi,Rakesh Kumar Srivastava,S.K. Verma Counsel for Opposite Party :- Anand Pati Tiwari,G.A. Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri Rakesh Kumar Srivastava, learned counsel for the applicant, Sri Anand Pati Tiwari, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel for the State and perused the material on records.

3. This is second bail application of the applicant. The first bail application of the applicant was rejected by this Court vide order dated 14.09.2021 passed in Criminal Misc. Bail Application No. 18017 of 2021 (Devish @ Raju vs. State of U.P. and Another).

4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Devish @ Raju, seeking enlargement on bail during trial in connection with Case Crime No. 87 of 2020, under Sections 363, 368, 376 IPC and Section 3/4 POCSO Act and Section 3(2)(v) SC/ST Act, registered at P.S. Sector 58 Noida, District Gautam Budh Nagar.

5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is submitted that the statement of the victim / prosecutrix has been recorded before the trial court as P.W.-2, the same has been placed before the Court which is annexed as Annexure-2 to the supplementary affidavit dated 10.01.2023. Learned counsel has submitted that the perusal of the statement of the victim goes to show that in her cross-examination she has stated that no such wrong incident was committed on her. It is submitted that looking to the said statement, the fact which comes out is that the applicant has been falsely implicated in the present case. The applicant has no bad antecedents as stated in para 25 and is in jail since 13.10.2020.

6. Per contra, learned counsel for the first informant and learned counsel for the State vehemently opposed the prayer for bail. It is submitted that the first bail application of the applicant has been rejected by this Court on merits vide order dated 14.09.2021. It is submitted that in so far as the victim / prosecutrix is concerned, she was examined as P.W.-2 before the trial court and in her examination-in-chief conducted on 02.01.2023 she has specifically stated that the applicant established physical relationship with her and on finding way she ran out and then asked for help from her uncle. It is submitted that subsequently on the next day the victim was cross-examined who states that no such wrong incident had taken place with her which is clearly tampering with evidence. It is submitted that the victim is a minor girl who supports the prosecution case in her examination-in- chief. It is submitted that the bail of the applicant be thus rejected.

7. After having heard learned counsel for the parties and perusing the record, it is evident that this is second bail application of the applicant. The first bail application was rejected by this Court vide order dated 14.09.2021, the same is extracted herein below:- "Learned counsel for the first informant states that although he had sought time for filing counter affidavit on 26.08.2021 but he does not intend to file any counter affidavit. Heard Sri Radhey Shyam Shukla, Advocate holding brief of Sri Shyam Sudarshan, learned counsel for the applicant, Sri Anand Pati Tiwari, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Devish @ Raju, seeking enlargement on bail during trial in connection with Case Crime No. 87 of 2020, under Sections 363, 368, 376 IPC and Section 3/4 POCSO Act and Section 3(2)(v) SC/ST Act, registered at P.S. Sector 58 Noida, District Gautam Budh Nagar. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the First Information Report was registered under Section 363 IPC by the mother of the prosecutrix stating therein that on 05.03.2020 at about 04:30 PM her daughter had gone for tuition but did not come back. On 06.03.2020 at about 09:00 AM she called her on her mobile phone and told her that three boys have taken her and she will return by 10:00 AM but still she did not come back. It is argued that the prosecturix went to the police Station on 15.03.2020 and told that she is aged about 19 years and she has come to know that her mother has got a First Information Report registered. Further, in her statement under Section 161 Cr.P.C. she has stated that she went on 05.03.2020 with the applicant on a motor bike and then they lived in a room which was taken on rent. She went out of her own sweet will without any pressure. It is argued that on a specific question by the Investigating Officer as to whether any illegal act was committed on her, she replied in negative. It is further argued that an afterthought subsequently in her statement under Section 164 Cr.P.C. she stated that she was raped by the applicant. Learned counsel has argued that the victim was subjected to medical examination and ascertainment of age wherein the Chief Medical Officer, Gautam Budh Nagar has opined that she is aged about 18 years. It is argued that as such the implication of the applicant in the present case is false and the prosecutrix is a major girl who had gone with the applicant out of her own sweet will. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the prosecutrix is a minor girl and as per the school records, her date of birth is recorded as 16.06.2003 and as such on the date of occurrence i.e. on 05.03.2020 she was a minor. It is argued that she has stated that in her statement under Section 164 Cr.P.C. that the applicant committed rape on her. It is further argued that since there is a date of birth in the school documents the same will have prevalence over the age certificate issued by the Chief Medical Officer. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected. After having heard learned counsels for the parties and perusing the records, it is evident that as per the school records, the prosecutrix is a minor girl. The consent of a minor is of no worth. There are allegations of rape in the statement under Section 164 Cr.P.C. of the prosecutrix against the applicant. I do not find it a fit case for bail. Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail. The bail application is, accordingly, rejected. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."

8. The victim in her examination-in-chief supports the prosecution case and specifically states of the applicant establishing physical relationship with her. She is a minor girl. The appreciation of statement of the victim is for the trial court to do at the appropriate stage. No ground for bail exists.

9. Looking to the facts and circumstances of the case, this Court does not find it a fit case for bail, hence, the bail application is rejected.

10. Pending application (s), if any, shall stand disposed of. Order Date :- 14.2.2025 AS Rathore (Samit Gopal,J.) ABHISHEK SINGH RATHOR High Court of Judicature at Allahabad