High Court · 2025

1. Heard learned counsel for the applicant, Mr. Deepak Mishra, learned Additional Government Advocate representing the State and 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-Jitendra @ Chhinga, who is involved in Case Crime No. 40 of 2024, under Sections 376D, 506 I.P.C., Section 5G/6 POCSO Act and Section 67 of Information Technology Act, Police Station Dauki, District Agra, seeks enlargement on bail during the pendency of trial.

3. As per prosecution case, in brief, victim lodged a first information report on 30.03.2024 for the alleged offence under Sections 376, 506 I.P.C. and Section 67 of Information Technology (Amendment) Act, 2000 against the applicant Jitendra @ Chhinga and other accused persons, namely, Chhote Lal, Jayprakash, Bhav Singh as well as two unknown persons making allegations inter alia that 5-6 months ago, she went to millet field for attending the call of nature, where applicant and two unknown persons caught hold of her. On raising alarm by the victim, the applicant put a pistol on her chest and threatened her to eliminate her, due to which she scared and did not raise alarm. The applicant, on the point of pistol committed rape on her and two unknown persons made video of the incident of rape. When victim told them that she will tell about the incident to her family members, then the applicant made the said video of the alleged incident of rape viral from his Facebook account.

4. Main substratum of argument of learned counsel for the applicant is that there are contradictions in the statements under Sections 161 and 164 Cr.P.C. as well as further statement (Majid Bayan) under Section 161 Cr.P.C of the victim. In fact no such incident took place as alleged by the prosecution. The applicant has been falsely implicated in this case because an incident took place on 28.03.2024 between family members of the victim and the applicant. Regarding the said incident Khem Singh (grand-father of the applicant) lodged a first information report on 06.08.2024, which was registered at Case Crime No. 0100 of 2024, under Sections 506, 452, 308, 504 and 323 I.P.C. making allegation against Dev Lal (grand-father of the victim) and uncles of victim, namely, Ashok, Mukesh and Satya Prakash alias Batashi and the injured persons have been medically examined on 28.03.2024 in district hospital, Agra. So far as allegation of making video of the alleged incident in the present case is concerned, it is submitted that said video was not made viral by the applicant. Therefore, the applicant who is languishing in jail since 02.04.2024 may be enlarged on bail.

5. Per contra, learned Additional Government Advocate for the State as well as learned counsel for the informant/ opposite party No. 2 vehemently opposed the prayer for bail of the applicant by reiterating the prosecution case as mentioned in the F.I.R. It is further pointed out that applicant has also committed misdeed with cousin of victim aged about 14 years, regarding which, maternal aunt of the victim of this case lodged a first information report on the same day i.e. 28.03.2024, which was registered at Case Crime No. 0037 of 2024 under Section 354 I.P.C. and Section 7/8 POCSO Act against the applicant, in which charge-sheet has been submitted against the applicant on 09.04.2024. So far as this case is concerned, it is submitted that after two days of the earlier incident, applicant being annoyed by the first information report dated 28.03.2024, committed rape on the victim, and his two friends who are co-accused in the present case made the video of the alleged incident, and in order to lower down and tarnish the reputation of the victim in the society said video was made viral from the Facebook account of the applicant. During investigation, Investigating OfÏcer has collected the obscene video and photographs in question of the victim and reference of the same is also mentioned in the C.D. No. 4 dated 03.04.2024, therefore, the bail application of the applicant is liable to be rejected.

6. Having heard learned counsel for the parties and examined the matter in its entirety, I find that first incident of molestation of the victim's cousin (sister) by the applicant was done on 28.03.2024, regarding which F.I.R. was lodged by maternal uncle of the victim promptly within 6 hours on the same day of incident i.e. 28.03.2024, in which, applicant has been charge-sheeted. After two days of the first incident, the second incident of rape with the victim took place on 30.03.2024, regarding which F.I.R. was also promptly lodged within one hour on the same day i.e. 30.03.2024, but at that time, no F.I.R was lodged from the side of applicant with regard to alleged marpeet took place on 28.03.2024. I also find that as per case of the applicant itself with regard to alleged incident dated 28.03.2024 of marpeet the effort was made from the side of the applicant to get the F.I.R. lodged on 02.04.2024 much after registration of the F.I.R. of this case, and thereafter, F.I.R. was lodged on 06.08.2024 through an application under Section 156(3) Cr.P.C. dated 10.07.2024, hence the same is not helpful to the applicant for presuming the false implication of the applicant in the present case. From perusal of the statement under Sections 161 and 164 Cr.P.C. and second statement of the victim, I find that the fact regarding allegation of rape on victim of this case against the applicant and making her video are consistent and there is no discrepancy with regard to the said allegation. I also find that the said allegation is corroborated from the obscene photographs and video of the incident collected by the Investigating OfÏcer during investigation, which is duly supported by the required certificate under Section 65B of the Evidence Act. This Court vide order dated 01.10.2024 directed the Station House OfÏcer concerned to explain the fact whether the video and photographs in question which have been taken into consideration by him have been found indecent or not. In compliance thereof, learned Government Advocate has filed an afÏdavit dated 08.11.2024 on behalf of the State mentioning in paragraph No. 3 of the same that photographs and video were found indecent and obscene. Though the applicant has come up with the stand that said video has not been made viral by him but on the basis of material collected by the Investigating OfÏcer it was found that the obscene video of the victim was made viral by the Facebook account (URL:https://www.facebook.com/profile.php? id=100073286257822&mibextid=ZbwKwL and post link https://www.facebook.com/ ankit.kumar532? mibextid) of the applicant. During the course of argument learned Additional Government Advocate has also produced obscene photographs and video in question in a pendrive in a sealed cover which has been opened and displayed in presence of counsel for the parties, which corroborate the allegations of the victim.

7. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to enlarge the applicant on bail.

8. Accordingly, the bail application is rejected.

9. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial. Order Date :- 27.1.2025 Kashifa KASHIFA High Court of Judicature at Allahabad

1. Heard learned counsel for the applicant, Mr. Deepak Mishra, learned Additional Government Advocate representing the State and 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-Jitendra @ Chhinga, who is involved in Case Crime No. 40 of 2024, under Sections 376D, 506 I.P.C., Section 5G/6 POCSO Act and Section 67 of Information Technology Act, Police Station Dauki, District Agra, seeks enlargement on bail during the pendency of trial.

3. As per prosecution case, in brief, victim lodged a first information report on 30.03.2024 for the alleged offence under Sections 376, 506 I.P.C. and Section 67 of Information Technology (Amendment) Act, 2000 against the applicant Jitendra @ Chhinga and other accused persons, namely, Chhote Lal, Jayprakash, Bhav Singh as well as two unknown persons making allegations inter alia that 5-6 months ago, she went to millet field for attending the call of nature, where applicant and two unknown persons caught hold of her. On raising alarm by the victim, the applicant put a pistol on her chest and threatened her to eliminate her, due to which she scared and did not raise alarm. The applicant, on the point of pistol committed rape on her and two unknown persons made video of the incident of rape. When victim told them that she will tell about the incident to her family members, then the applicant made the said video of the alleged incident of rape viral from his Facebook account.

4. Main substratum of argument of learned counsel for the applicant is that there are contradictions in the statements under Sections 161 and 164 Cr.P.C. as well as further statement (Majid Bayan) under Section 161 Cr.P.C of the victim. In fact no such incident took place as alleged by the prosecution. The applicant has been falsely implicated in this case because an incident took place on 28.03.2024 between family members of the victim and the applicant. Regarding the said incident Khem Singh (grand-father of the applicant) lodged a first information report on 06.08.2024, which was registered at Case Crime No. 0100 of 2024, under Sections 506, 452, 308, 504 and 323 I.P.C. making allegation against Dev Lal (grand-father of the victim) and uncles of victim, namely, Ashok, Mukesh and Satya Prakash alias Batashi and the injured persons have been medically examined on 28.03.2024 in district hospital, Agra. So far as allegation of making video of the alleged incident in the present case is concerned, it is submitted that said video was not made viral by the applicant. Therefore, the applicant who is languishing in jail since 02.04.2024 may be enlarged on bail.

5. Per contra, learned Additional Government Advocate for the State as well as learned counsel for the informant/ opposite party No. 2 vehemently opposed the prayer for bail of the applicant by reiterating the prosecution case as mentioned in the F.I.R. It is further pointed out that applicant has also committed misdeed with cousin of victim aged about 14 years, regarding which, maternal aunt of the victim of this case lodged a first information report on the same day i.e. 28.03.2024, which was registered at Case Crime No. 0037 of 2024 under Section 354 I.P.C. and Section 7/8 POCSO Act against the applicant, in which charge-sheet has been submitted against the applicant on 09.04.2024. So far as this case is concerned, it is submitted that after two days of the earlier incident, applicant being annoyed by the first information report dated 28.03.2024, committed rape on the victim, and his two friends who are co-accused in the present case made the video of the alleged incident, and in order to lower down and tarnish the reputation of the victim in the society said video was made viral from the Facebook account of the applicant. During investigation, Investigating OfÏcer has collected the obscene video and photographs in question of the victim and reference of the same is also mentioned in the C.D. No. 4 dated 03.04.2024, therefore, the bail application of the applicant is liable to be rejected.

6. Having heard learned counsel for the parties and examined the matter in its entirety, I find that first incident of molestation of the victim's cousin (sister) by the applicant was done on 28.03.2024, regarding which F.I.R. was lodged by maternal uncle of the victim promptly within 6 hours on the same day of incident i.e. 28.03.2024, in which, applicant has been charge-sheeted. After two days of the first incident, the second incident of rape with the victim took place on 30.03.2024, regarding which F.I.R. was also promptly lodged within one hour on the same day i.e. 30.03.2024, but at that time, no F.I.R was lodged from the side of applicant with regard to alleged marpeet took place on 28.03.2024. I also find that as per case of the applicant itself with regard to alleged incident dated 28.03.2024 of marpeet the effort was made from the side of the applicant to get the F.I.R. lodged on 02.04.2024 much after registration of the F.I.R. of this case, and thereafter, F.I.R. was lodged on 06.08.2024 through an application under Section 156(3) Cr.P.C. dated 10.07.2024, hence the same is not helpful to the applicant for presuming the false implication of the applicant in the present case. From perusal of the statement under Sections 161 and 164 Cr.P.C. and second statement of the victim, I find that the fact regarding allegation of rape on victim of this case against the applicant and making her video are consistent and there is no discrepancy with regard to the said allegation. I also find that the said allegation is corroborated from the obscene photographs and video of the incident collected by the Investigating OfÏcer during investigation, which is duly supported by the required certificate under Section 65B of the Evidence Act. This Court vide order dated 01.10.2024 directed the Station House OfÏcer concerned to explain the fact whether the video and photographs in question which have been taken into consideration by him have been found indecent or not. In compliance thereof, learned Government Advocate has filed an afÏdavit dated 08.11.2024 on behalf of the State mentioning in paragraph No. 3 of the same that photographs and video were found indecent and obscene. Though the applicant has come up with the stand that said video has not been made viral by him but on the basis of material collected by the Investigating OfÏcer it was found that the obscene video of the victim was made viral by the Facebook account (URL:https://www.facebook.com/profile.php? id=100073286257822&mibextid=ZbwKwL and post link https://www.facebook.com/ ankit.kumar532? mibextid) of the applicant. During the course of argument learned Additional Government Advocate has also produced obscene photographs and video in question in a pendrive in a sealed cover which has been opened and displayed in presence of counsel for the parties, which corroborate the allegations of the victim.

7. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to enlarge the applicant on bail.

8. Accordingly, the bail application is rejected.

9. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial. Order Date :- 27.1.2025 Kashifa KASHIFA High Court of Judicature at Allahabad