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2019 DIGILAW 565 (ALL)

Sanjay v. State of U. P.

2019-03-01

HARSH KUMAR

body2019
JUDGMENT : Harsh Kumar, J. 1. Supplementary-affidavit filed by Counsel for applicant today in the Court is taken on record. 2. Heard Shri Dharmendra Pratap Singh learned Counsel for applicant, Shri Sarad Kumar Srivastava, learned Counsel for first informant, learned A.G.A. and perused the record. 3. This is second bail application after rejection of first bail application vide order dated 18.12.2017 in Criminal Misc. Bail Application No. 39111 of 2017. 4. Learned Counsel for applicant contended that since after rejection of first bail application vide order dated 18.12.2017 now the father of applicant has agreed to keep prosecutrix in his house as wife of applicant, Sanjay who is charged with offence under sections 342, 376, 504 and 506, I.P.C. and section 4 POCSO Act, that Sant Lal the father of applicant has given affidavit in support of this contention and he is ready to accept prosecutrix as his daughter-in-law; that no other new ground is mentioned; that applicant has no criminal history; that applicant undertakes that he will not misuse liberty of bail; that the applicant is in custody since 19.5.2017. 5. 5. Learned A.G.A. vehemently opposed the prayer of bail and contended that applicant committed rape on 14 years old prosecutrix about 6 months before lodging of F.I.R. on 17.4.2017 due to which she conceived and first bail application has been rejected by a detailed order dated 18.12.2017; that there is no new ground in second bail application; that supplementary affidavit of father of applicant is not reliable and it appears that some fake person has given supplementary affidavit impersonating himself to be Santlal as the signatures on affidavit given in support of bail application are different from those on the supplementary affidavit, and moreover in affidavit dated 23.4.2018 given in support of second bail application age of deponent has been mentioned as 40 years, while supplementary affidavit has been sworn by a 36 years old person; that alleged offer of father of applicant for accepting the prosecutrix as his daughter-in-law has been made falsely for obtaining bail in the garb of such offer/proposal; that prosecutrix was aged about 14 years at the time when she was raped by applicant about 6 months before lodging of F.I.R. on 17.4.2017 and is still below 16 years of age; that applicant has spoiled life of innocent girl of 14 years and due to criminal act of applicant she at immature age has given birth to child; that prosecutrix was examined during trial on 6.7.2018 and cross examination with her was got adjournment by accused applicant for several days and completed only on 9.8.2018 and 29.8.2018; that after committal of rape by showing sympathy or mercy on victim offence cannot be undone and above offer is nothing but a farce; that applicant if released on bail shall misuse liberty of bail and delay & defraud fair trial. 6. Upon hearing learned Counsel for the parties, perusal of record, I find that in a case of committal of rape with 14 years old innocent girls, the aforesaid offer by father of accused for accepting victim as wife of accused is neither reliable nor acceptable at all. 7. 6. Upon hearing learned Counsel for the parties, perusal of record, I find that in a case of committal of rape with 14 years old innocent girls, the aforesaid offer by father of accused for accepting victim as wife of accused is neither reliable nor acceptable at all. 7. In the case of State of Madhya Pradesh vs. Madanlal, 2015 (91) ACC 377 (SC), Apex Court held that: "In case of rape or attempt to rape, compromise under no circumstances can really be thought of since these are crimes against the body of a woman, which is her own temple-Courts must beware of this subterfuge to adopt soft/liberal approach which would be in the realm of error, and is legally impermissible." 8. In the case of Shimbhu and Another vs. State of Haryana, 2013 (83) ACC 711 (SC), the three Judges Bench of Apex Court held that: "Plea for reduction of sentence of 10 years RI based on compromise affidavit of victim, that occurrence took place about 18 years ago and victim settled in life held not acceptable - Rape being an offence against society, held factors pertaining to accused and victim such as compromise arrived at between parties, old occurrence and long pendency of criminal trial, subsequent marriage of victim and having children, as also caste, creed, religion, socio-economic status etc. not relevant to constitute adequate and special reasons for reduction of accused sentence to period already undergone, such compromise may often be an outcome of pressure and her compulsion and it would be unsafe to consider it a ground for reducing the sentence under the proviso - Rape is a non-compoundable offence, hence matter cannot be left to compromise and settle." 9. In view of the discussions made above, and considering the age of victim 14 years at the time of incident, giving of birth by her to a child in such immature age, complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I do not find it a fit case for bail. The bail application of applicant Sanjay in S.T. No. 105 of 2017 arising out of Case Crime No. 130 of 2017, under sections 342, 376 and 506, I.P.C. and section 4 POCSO Act, Police Station Thariyaon, District Fatehpur is rejected accordingly. 10. The bail application of applicant Sanjay in S.T. No. 105 of 2017 arising out of Case Crime No. 130 of 2017, under sections 342, 376 and 506, I.P.C. and section 4 POCSO Act, Police Station Thariyaon, District Fatehpur is rejected accordingly. 10. However, the Trial Court is requested to conclude the trial as expeditiously as possible without granting unnecessary adjournment to either parties.