Raja v. State of U.P. and
Case Details
Neutral Citation No. - 2025:AHC:22143 Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40878 of 2024 Applicant :- Raja Opposite Party :- State Of U.P. And 4 Others Counsel for Applicant :- Ansar Haider Rizvi,Zafar Abbas Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Zafar Abbas, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1. 2. Perused the record. 3. This repeat application for bail has been filed by applicant-Raja seeking his enlargement on bail in Case Crime No. 274 of 2023 under Section 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Gandhi Park, District-Aligarh, during the pendency of trial i.e. Sessions Trial No. 2065 of 2023 (State of Raja) under Section 376 I.P.C. and Sections 3/4 POCSO Act, Police Station-Gandhi Park, District-Aligarh now pending in the Court of Additional District and Sessions Judge, POCSO Court No.1, Aligarh. 4. At the very outset, the learned A.G.A. submits that notice of
Legal Reasoning
present repeat application for bail has been served upon first informant/opposite party-5 on 20.10.2024. However, in spite of service of notice, neither any counter affidavit has been filed by first informant/opposite party-5 nor anyone has put in appearance on his behalf to oppose this repeat application for bail. 5. The first bail application of applicant was rejected by this Court by a detailed order dated 28.10.2023 passed in Criminal Misc. Bail Application No. 39831 of 2023 (Raja Vs. State of U.P. and 3 Others). For ready reference, the order dated 28.10.2023 is reproduced herein-under:
Legal Reasoning
" 1. Heard Mr. Rajesh Yadav, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Instant bail application has been filed by applicant-Raja seeking his enlargement on bail in Case Crime No. 274 of 2023 under Section 376 I.P.C. and Sections 3/4 POCSO Act, Police Station- Gandhi Park, District- Aligarh during pendency of the trial. 4. At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon first informant/opposite party-2 on 05.09.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant/opposite party-2 to oppose the present application for bail. 5. Record shows that in respect of an incident which is alleged to have occurred on 22.05.2023, a prompt F.I.R dated 22.05.2023 was lodged by first informant Harprasad (father of the prosecutrix) and was registered as Case Crime No.274 of 2023 under Section 376 I.P.C. and Sections 3/4 POCSO Act, Police Station- Gandhi Park, District- Aligarh . In the aforesaid F.I.R. applicant-Raja has been nominated as solitary named accused. 6. The gravamen of the allegations made in the F.I.R. is to the effect that named accused-Raja (applicant herein) deliberately and forcefully dislodged the modesty of the prosecutrix i.e daughter of the first informant. 7. After registration of aforesaid F.I.R., Investigating officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The statement of prosecutrix was recorded under Section 161 Cr.P.C. by Investigating Officer. Same is on record at page 42 of the paper book. Prosecutrix in her aforesaid statement has supported the prosecution story as unfolded in the F.I.R.. Thereafter, the prosecutrix was requested for her internal medical examination. The prosecutrix in her statement before the Doctor, who medically examined her has partially supported the F.I.R.. However, the Doctor who medically examined the prosecutrix did not find any injury on her body so as to denote commission of deliberate sexual assault. However, clothes of the prosecutrix was seized and sent FSL Laboratory. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the result of the same is in negative. As per FSL report of articles of the prosecutrix male sperm was found on the same. Copy of the same is on record at page 40 of the paper book. 8. During course of investigation, Investigation Officer examined first informant and other witnesses under Section 161 Cr.P.C. The first informant has not only supported the F.I.R. but has also detailed the scene of crime at the time when the prosecutrix was recovered alongwith the applicant. There is no document in-consonance with the provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act 2015 regarding the date of birth of the prosecutrix. Therefore of necessity, the age of the prosecutrix has to be determined as per medical opinion. According to the medical opinion, the prosecutrix is said to be aged about 16 years. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. He accordingly submitted the charge-sheet dated 20.06.2023 whereby applicant has been charge sheeted under Sections 376 I.P.C. and Sections 3/4 POCSO Act 9. Learned counsel for applicant submits that though applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. Attention of the Court was then invitd to the statement of the prosecutrix recorded under Sections 161/164 Cr.P.C. With reference to the case diary, the learned counsel for applicant submits that prosecutions in her subsequent statement under Section 164 CrP.C. has not rejoined her previous statement under Section 161 Cr.P.C. It is then contended that the alleged occurrence is alleged to have occurred on the first floor of the house even when the parents and brother of the prosecutrix were present. He therefore submits that present case is a case of false and malicious implication. 10. Even otherwise applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 23.05.2023. As such he has undergone more than five months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, the learned counsel for applicant submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 11. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since the applicant is a named as well as charge-sheet accused, therefore he does not deserve any indulgence by this Court. According to learned A.G.A. as per FSL report, innocence of applicant is clearly belied. As per medical opinion, the prosecutrix is aged about 16 years. Learned A.G.A. has thus referred to the judgement of Supreme court in X (Minor) Vs. The State of Jharkhand and Another ( 2022 Live Law (SC) 194. Learned A.G.A. further submits that even in absence of medical evidence, conviction can be maintained under Section 376 I.P.C.on the basis of sole testimony of the occurrence. Referring to the statements of prosecutrix under Sections 161/164 Cr.P.C., he submits that the prosecutrix has substantially supported the prosecution story. On the aforesaid premise, the learned A.G.A. contends that applicant does not deserve any sympathy of this Court. Therefore, present applicant for bail is liable to be rejected. 12. When confronted with above, the learned counsel for applicant could not overcome the same. 13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that prosecutrix in her statement under Section 161 Cr.P.C. has fully supported the F.I.R., father of the prosecutrix, who is an eye witness of the occurrence has also supported the F.I.R., the FSL report, copy of which is on record at page 40 of the paper book clearly proves that sexual assault was committed upon the prosecutrix, as per medical opinion prosecutrix is a young girl below 16 years of age, the judgement of Apex Court in X (Minor) (supra) therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present application for bail this Court does not find any good or sufficient ground to enlarge the applicant on bail. 14. As a result, the present application for bail fails and is liable to be rejected. 15. It is accordingly rejected. Order Date :- 28.10.2023 " 6. Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused and facing trial before court below by way of aforementioned Sessions Trial yet he is liable to be enlarged on bail. In furtherance of aforesaid submission, the learned counsel for applicant contends that the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. 7. It is further submitted by the learned counsel for applicant that the first informant/opposite party-5, Har Prasad (father of the prosecutrix) has already deposed before court below as P.W.-1, whereas the prosecutrix has deposed before court below as P.W.-2 and Sandeep has deposed before court below as P.W.-3. He therefore contends that in view of above it is evident that most of the prosecution witnesses of fact have deposed before court below. He therefore contends that in case applicant is enlarged on bail then in that eventuality it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of trial. He therefore contends that in view of above, no good ground now exists to prolong the custodial arrest of applicant during pendency of trial. Reliance is placed upon the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6). Applicant in jail since 23.05.2023. As such, he has undergone one year and eight months of incarceration. There is no likelihood of the trial being concluded in near future. 8. Learned counsel for applicant then submits that though cognizance was taken by court concerned vide Cognizance Taking Order dated 09.08.2023, the prosecutrix has deposed before court below on 09.10.2024, which is in clear violation of the provisions contained in Section 35 (2) of the POCSO Act. No explanation has come forward from the prosecutrix as to why the statement of the prosecutrix could not be got recorded within a period of two months from the date of cognizance taking order. Attention of the Court was then invited to the penultimate part of the deposition of the prosecutrix before court below and on basis thereof it is sought to be urged that the prosecutrix in her statement before court below has not supported the prosecution story. As such, applicant is liable to be enlarged on bail. It is further contended by the learned counsel for applicant that the prosecutrix in her deposition before court blow has clearly stated that her modesty was not dislodged by applicant on 15.07.2023. As such, the applicant is liable to be enlarged on bail. 9. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 10. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed this repeat application for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does deserve any indulgence by this Court. According to the learned A.G.A., the prosecutix in her deposition before court below has clearly implicated the applicant in the crime in question as is evident from her deposition before court below, which is at page 8 of the supplementary affidavit. The prosecutrix has stated in unequivocal term that her modesty was deliberately and forcibly dislodged by applicant. The aforesaid statement occurring in the deposition of the prosecutrix also stands corroborated by the statement of P.W.-3, Sandeep as is evident from page 21 of the supplementary affidavit. On the above premise, the learned A.G.A. submits that once the prosecutrix and P.W.-3, Sandeep in their depositions before court below have clearly implicated the applicant in the crime in question, then no new, good or sufficient ground can be said to have emerged so as to enlarge the applicant on bail. Considering the nature and gravity of offence and also the period of punishment provided for the offence complained of, no interference is warranted by this Court. Applicant is guilty of committing crime which is not only illegal but also immoral. The prosecutrix was a young girl less than 18 years of age on the date of occurrence. Learned A.G.A. has then invited the attention of Court to the Medico Legal Examination Report of the prosecutrix wherein there is clear recital that clothes worn by the prosecutrix at the time of occurrence were sealed and kept in police custody. However, no submission has been advanced in respect of the same by the learned counsel for applicant. On the above premise, the learned A.G.A. submits no new, good or sufficient ground has emerged so as to enlarge the applicant on bail. 11. When confronted with above, the learned counsel for applicant has rejoined the submissions urged by him in support of this repeat application for bail. However, he could not dislodged the factual and legal submissions urged by the learned A.G.A. in opposition to this repeat application for bail. 12. Having heard the learned counsel for applicant, the learned A.G.A. for State,, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that objections raised by the learned A.G.A. in opposition to this repeat application for bail as noted herein above are not only borne out from the record but furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail but without making any comment on the merits of the case, this court does not find any new, good or sufficient ground so as to enlarge the applicant on bail. 13. As a result, present repeat application for bail fails and is liable to be rejected. 14. It is accordingly rejected. Order Date :- 17.2.2025 YK Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad