Hariom Sharma v. State of U.P.) and Criminal Misc. Bail Application No

1- Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel for the complainant. 2- By means of this application under Section 439 of Cr.P.C., applicant Sonu, who is involved in Case Crime No. 38 of 2024, under Sections 376, 323, 506, 313, 452 IPC and Section 5(j)(ii)/6 POCSO Act, police station district enlargement on bail during the pendency of trial. Kannauj Indragarh, 3- As per prosecution case, in brief, the complainant who is mother of victim got a first information report lodged on 22.02.2024 through an application under Section 156(3) Cr.P.C. dated 29.01.2024 against the applicant Sonu and three other persons, namely, Aakib, Hasnain and Pappu for the alleged offence under Sections 376, 323, 506, 452, 313, 342 IPC and Sections 3/4 POCSO Act alleging inter alia that her daughter aged about 15 years used to live at home. When she complained of pain in her stomach, she took her to the doctor for treatment. The doctor asked her to get an ultrasound. When she got her daughter ultrasound done, it came to light that she was five months pregnant. When she scolded her and asked about her pregnancy then her daughter told that about five months ago when she was sleeping at home, the applicant barged into her house and forcibly committed rape on her and also threatened her that if she tells anything about this, he will kill her. Due to this fear, she did not tell anyone. On knowing about this, she gave a written application to the Police Station Indragarh but neither her report was lodged nor any action was taken by the police of police station Indragarh. When the applicant and his family members came to know, then the applicant along with other co-accused came to her house and pressurized to suppress it. On protesting, they beaten and extended pressure to compromise the matter. They forcibly took her daughter away and got her abortion done. In the meantime, with the intention to lure them, they also made compromise on a stamp paper. 4- Main substratum of argument of learned counsel for the applicant is that the victim has not supported the prosecution case before the trial Court, therefore, the applicant, who has been languishing in jail since 06.04.2024, may be enlarged on bail. He has also placed reliance upon the orders dated 31.05.2022 and 16.01.2025 passed by this Court in Criminal Misc. Bail Application No. 12379 of 2022 (Hariom Sharma Vs. State of U.P.) and Criminal Misc. Bail Application No. 46404 of 2024 (Romi Vs. State of U.P. and others). 5- Per contra, learned A.G.A. for the State and learned counsel for the complainant vehemently opposed the prayer for bail of the applicant by contending that on the date of incident, the victim was small child aged about 15 years. As per prosecution case, the applicant finding the victim alone in the house barged into her house and committed rape on her, whereby she became pregnant but due to fear of shame, the victim did not disclose it. When she suffered pain in her stomach, her ultrasound was done, then this fact came into the knowledge of her parents that she is having pregnancy of five months. At this juncture, the victim has narrated the entire incident giving vivid description of the same. When accused persons and his family members came to know about the said pregnancy then came to the house of the victim and forcibly got her foetus aborted and mounted pressure for compromise. Much emphasis has been given by contending that the applicant and his family members are domineer persons of the society, therefore, the first information report of complainant was not lodged by the police. Under the circumstances, she had no option but to approach the Court through an application under Section 156(3) Cr.P.C. and accordingly, after great effort first information report was lodged by the order of the Court and after investigation, charge-sheet was submitted. So far as statement of the victim recorded before the trial Court is concerned, it is submitted that the victim has not denied the incident. She has stated inter alia that she was raped by a middle aged person. Much emphasis has been given by contending that the possibility of extending pressure on the victim from the accused side for not disclosing the name of the applicant cannot be ruled out. Learned counsel for the complainant placed reliance upon the judgment of the Apex Court in the case of State of U.P. Vs. Ramesh Prasad Mishra, (1996) 10 SCC 360, wherein it has been held that if there are contradictions in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is found to be of sterling quality and is being supported from other material on record and attending circumstances. 6- Having heard learned counsel for the parties and examined the matter in its entirety, I find that it is not a case where victim has completely denied the incident. She has disclosed the incident of rape on her giving vivid description of the same. She instead of taking the name of any person stated inter alia that she was sleeping in her room. The door of her house was opened. No one else was present in her house. At that time a middle aged person who had covered his face with a cloth and holding a pistol in his hand came and caught hold of her and on the gunpoint forcibly committed rape on her. So far as statement of the victim to the extent of not taking the name of the applicant is concerned, this Court considering the age of the victim, status of the complainant, nature of offence and the tone and tenor of the statement of the victim, is of the view that possibility of winning over the victim and her mother from the accused side cannot be ruled out. So far as orders dated 31.05.2022 and 16.01.2025 passed in the case of Hariom Sharma (supra) and Romi (supra) relied upon on behalf of the applicant are concerned, I find that in those matters, victims have completely denied the incident in her examination-in-chief, whereas facts and evidence of the present case in hand are entirely different. Hence those orders are not helpful to the applicant. This Court is of the view that each case must be decided on its own facts and merit. Even one additional or different fact may make big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect. This Court is also of the view that conclusion from the statement of any witness shall be drawn considering his/her statement in toto not in isolation. Since allegation of the prosecution and defence of the accused are still open to be urged before the trial Court, therefore, this Court is not recording any finding with regard to statement recorded before the trial Court, so that it may not affect merit of the case. 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 and role assigned to applicant, I do not find any good ground to release 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. 10- However, considering the detention period of the applicant as noted above, Superintendent of Police, Kannauj is directed to ensure production of remaining prosecution witnesses on the dates fixed before the trial Court, so that trial of the applicant may be concluded at the earliest. 11- On appearance of the prosecution witnesses, trial Court shall record their statements on the same day without granting any adjournment to either of the parties. 12- A copy of this order be communicated to the Superintendent of Police, Kannauj and the trial Court within three days for information and compliance. Order Date :- 24.1.2025 Shubham SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad

1- Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel for the complainant. 2- By means of this application under Section 439 of Cr.P.C., applicant Sonu, who is involved in Case Crime No. 38 of 2024, under Sections 376, 323, 506, 313, 452 IPC and Section 5(j)(ii)/6 POCSO Act, police station district enlargement on bail during the pendency of trial. Kannauj Indragarh, 3- As per prosecution case, in brief, the complainant who is mother of victim got a first information report lodged on 22.02.2024 through an application under Section 156(3) Cr.P.C. dated 29.01.2024 against the applicant Sonu and three other persons, namely, Aakib, Hasnain and Pappu for the alleged offence under Sections 376, 323, 506, 452, 313, 342 IPC and Sections 3/4 POCSO Act alleging inter alia that her daughter aged about 15 years used to live at home. When she complained of pain in her stomach, she took her to the doctor for treatment. The doctor asked her to get an ultrasound. When she got her daughter ultrasound done, it came to light that she was five months pregnant. When she scolded her and asked about her pregnancy then her daughter told that about five months ago when she was sleeping at home, the applicant barged into her house and forcibly committed rape on her and also threatened her that if she tells anything about this, he will kill her. Due to this fear, she did not tell anyone. On knowing about this, she gave a written application to the Police Station Indragarh but neither her report was lodged nor any action was taken by the police of police station Indragarh. When the applicant and his family members came to know, then the applicant along with other co-accused came to her house and pressurized to suppress it. On protesting, they beaten and extended pressure to compromise the matter. They forcibly took her daughter away and got her abortion done. In the meantime, with the intention to lure them, they also made compromise on a stamp paper. 4- Main substratum of argument of learned counsel for the applicant is that the victim has not supported the prosecution case before the trial Court, therefore, the applicant, who has been languishing in jail since 06.04.2024, may be enlarged on bail. He has also placed reliance upon the orders dated 31.05.2022 and 16.01.2025 passed by this Court in Criminal Misc. Bail Application No. 12379 of 2022 (Hariom Sharma Vs. State of U.P.) and Criminal Misc. Bail Application No. 46404 of 2024 (Romi Vs. State of U.P. and others). 5- Per contra, learned A.G.A. for the State and learned counsel for the complainant vehemently opposed the prayer for bail of the applicant by contending that on the date of incident, the victim was small child aged about 15 years. As per prosecution case, the applicant finding the victim alone in the house barged into her house and committed rape on her, whereby she became pregnant but due to fear of shame, the victim did not disclose it. When she suffered pain in her stomach, her ultrasound was done, then this fact came into the knowledge of her parents that she is having pregnancy of five months. At this juncture, the victim has narrated the entire incident giving vivid description of the same. When accused persons and his family members came to know about the said pregnancy then came to the house of the victim and forcibly got her foetus aborted and mounted pressure for compromise. Much emphasis has been given by contending that the applicant and his family members are domineer persons of the society, therefore, the first information report of complainant was not lodged by the police. Under the circumstances, she had no option but to approach the Court through an application under Section 156(3) Cr.P.C. and accordingly, after great effort first information report was lodged by the order of the Court and after investigation, charge-sheet was submitted. So far as statement of the victim recorded before the trial Court is concerned, it is submitted that the victim has not denied the incident. She has stated inter alia that she was raped by a middle aged person. Much emphasis has been given by contending that the possibility of extending pressure on the victim from the accused side for not disclosing the name of the applicant cannot be ruled out. Learned counsel for the complainant placed reliance upon the judgment of the Apex Court in the case of State of U.P. Vs. Ramesh Prasad Mishra, (1996) 10 SCC 360, wherein it has been held that if there are contradictions in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is found to be of sterling quality and is being supported from other material on record and attending circumstances. 6- Having heard learned counsel for the parties and examined the matter in its entirety, I find that it is not a case where victim has completely denied the incident. She has disclosed the incident of rape on her giving vivid description of the same. She instead of taking the name of any person stated inter alia that she was sleeping in her room. The door of her house was opened. No one else was present in her house. At that time a middle aged person who had covered his face with a cloth and holding a pistol in his hand came and caught hold of her and on the gunpoint forcibly committed rape on her. So far as statement of the victim to the extent of not taking the name of the applicant is concerned, this Court considering the age of the victim, status of the complainant, nature of offence and the tone and tenor of the statement of the victim, is of the view that possibility of winning over the victim and her mother from the accused side cannot be ruled out. So far as orders dated 31.05.2022 and 16.01.2025 passed in the case of Hariom Sharma (supra) and Romi (supra) relied upon on behalf of the applicant are concerned, I find that in those matters, victims have completely denied the incident in her examination-in-chief, whereas facts and evidence of the present case in hand are entirely different. Hence those orders are not helpful to the applicant. This Court is of the view that each case must be decided on its own facts and merit. Even one additional or different fact may make big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect. This Court is also of the view that conclusion from the statement of any witness shall be drawn considering his/her statement in toto not in isolation. Since allegation of the prosecution and defence of the accused are still open to be urged before the trial Court, therefore, this Court is not recording any finding with regard to statement recorded before the trial Court, so that it may not affect merit of the case. 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 and role assigned to applicant, I do not find any good ground to release 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. 10- However, considering the detention period of the applicant as noted above, Superintendent of Police, Kannauj is directed to ensure production of remaining prosecution witnesses on the dates fixed before the trial Court, so that trial of the applicant may be concluded at the earliest. 11- On appearance of the prosecution witnesses, trial Court shall record their statements on the same day without granting any adjournment to either of the parties. 12- A copy of this order be communicated to the Superintendent of Police, Kannauj and the trial Court within three days for information and compliance. Order Date :- 24.1.2025 Shubham SHUBHAM KUMAR AGRAHARI High Court of Judicature at Allahabad