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Allahabad High Court · body

2021 DIGILAW 553 (ALL)

Shabbir v. State of U. P.

2021-06-15

VIKAS KUNVAR SRIVASTAV

body2021
ORDER : 1. The case is called out through video conferencing. 2. Learned counsel for the bail-applicant Sri. Anil Kumar Srivastava, Advocate and learned A.G.A. for the State Sri. Prem Prakash, Advocate are connected through video conferencing in virtual hearing of the case. 3. The present bail-application is moved on behalf of accused-applicant/Shabbir, who is involved in Case Crime No. 209 of 2020, under Sections 363, 366, 376, 506 of I.P.C. Section 3/4 of POCSO Act and Section 3(2)(5) of SC/ST Act, registered at Police Station Motigarpur, District Sultanpur. 4. Reading over the first information report lodged on 13.07.2020, learned counsel for the bail applicant submits the prosecution case, as emerging from the first information report and the statements of the witnesses is that, according to the complaint by the informant mother of the minor victim, one Udairaj, a neighbour boy who was on talking terms with her minor daughter, aged about 16 years, on 03.07.2020 enticed her to come near a tube-well of one Ashok Singh alongwith her Adhaar Card, Bank Passbook and some cash. The victim met with Udairaj as suggested by him alongwith her Adhaar Card, Bank Passbook and cash of Rs. 19,000/-. Udairaj took all the cash and papers from the victim and asked her to go alongwith the accused-applicant/Shabbir on his motorcycle with a promise of marrying with her. The present accused-applicant took the victim girl to a deserted place near ‘Saraiya Bazar Nahar’ and committed rape, thereafter, left her near ‘Pandey Baba Bazar’ from where, Udairaj took the victim to her home and threatened her of life, if she tells this to anyone else. 5. Learned counsel for the bail-applicant in the above context argued that after registering first information report, police started investigation and the statements of complainant and witnesses were recorded, wherein prosecution finds no support. Learned counsel particularly impressed on annexure no. 4 to the bail-application, the medical examination report, which was performed by the Doctor wherein it is reported that no external injury was found upon the body of the prosecutrix or any visible sign of sexual assault. 6. Learned counsel further submitted that the applicant is innocent, he has falsely been roped in the present case by the complainant, due to political rivalry as the family of the complainant and family of the applicant are on inimical terms with each other. 6. Learned counsel further submitted that the applicant is innocent, he has falsely been roped in the present case by the complainant, due to political rivalry as the family of the complainant and family of the applicant are on inimical terms with each other. He further argued that the named accused who enticed and took away the minor girl out of her natural guardian's custody ‘Udairaj’ is excluded from the charge-sheet, therefore, the entire prosecution case falls down being baseless. He pressed on this ground for release of the present accused-applicant on bail. 7. Learned A.G.A. in reply of the arguments from the side of accused-applicant submitted, it is obvious from the first information report that the victim is a member of schedule caste, a socially down trodden community by reason of which the complaint of her mother could be lodged by police only on 13.07.2020 in respect of sexual assault on her minor daughter dated 03.07.2020. After registration of F.I.R. only, the victim was subjected to medical examination, therefore, medical examination report cannot produce evidence of sexual violence committed on the victim after such a long gap. 8. He further submitted that the minor girl left her guardian's custody on the enticement of her friend Udairaj under impression that they were going to marry each other but the present accused-applicant/Shabbir who was present alongwith Udairaj at the prefixed meeting place, in aid, who when entrusted by Udairaj to provide a ride to her on motorcycle for another safe place, where Udairaj himself to reach, the accused-applicant took undue advantage of her helplessness and committed rape on her. 9. Learned A.G.A. argued, the allegation of rape is supported without any contradiction and anomaly in statement recorded by the Investigating Officer under Section 161 Cr.P.C. and further in statement when the victim was produced before the Magistrate Court. 10. Learned A.G.A. further argued that the annexure no. 6 to the affidavit in support of bail-application itself establishes the age of the victim below 16 years, therefore, the penetrative offence under Section 3/4 of the POCSO Act is made out against the present accused-applicant and he is liable to be presumed to have committed the offence under Section 29 of the Act as well with culpable mind under Section 30 of the said Act. Nothing on record to prima-facie rebut this presumption is placed by the applicant. 11. Nothing on record to prima-facie rebut this presumption is placed by the applicant. 11. In the above context, learned counsel submits that the accused-applicant is ready and willing to face the trial and he is not in a position to flee away from the process of the court, he should be released on bail subject to the conditions imposed by the Court with which he shall abide himself. 12. Protesting the bail plea as argued by learned counsel for the bail-applicant, learned A.G.A. for the State submitted that the present accused-applicant is a person of mischievous character. On the basis of instructions received to him, he has submitted that it is sufficient to show the instinct of the accused that he will affect adversely the witnesses and the evidences against him, if released on bail. Moreover, inimical relations between the parties is admitted. 13. Learned A.G.A. further submitted that even after the lodging of first information report, nature and behavior of the accused-applicant are enough to disentitle him for grant of bail at this stage. 14. Learned A.G.A. further submitted that the learned trial court need be directed to proceed expeditiously so as the complainant's evidences alongwith other material witness of the fact are recorded so that the complainant may be saved from being affected adversely by reason of long drawn trial. 15. On hearing the parties on the facts and circumstances and perusal of the materials on record, keeping in view the entirety of facts as emerging from the statements of witness annexed with the affidavit in support of the bail-application are also sufficient together to show, the accused-applicant is capable of tampering the evidences and affect the witness adversely. 16. On perusal of record, it also appears that the present accused-applicant is assigned the role of committing penetrative offence against a 16 years old minor child. The statements under Section 161 Cr.P.C. and 164 Cr.P.C. are intact to the same effect, the statement of the victim as such prima-facie believable and reliable because of its being at par on the higher pedestal of credibility like injured witness of an violent incident. Moreover, there is no explanation of the incident made in the affidavit in support of bail-application. Moreover, there is no explanation of the incident made in the affidavit in support of bail-application. Further, Section 29 of the POCSO Act makes a presumption of the offence, since the allegations made by the victim girl remains un-rebutted, therefore, prima-facie the presumption of commission of offence by the present accused-applicant is constituted. Moreover, the victim is a child and she might be exposed to the threat of life and living as well as undue pressure in the course of trial as the accused is also a native of the same locality. 17. On the basis of above discussions, I find no force in the submission of learned counsel for the bail-applicant and the bail application is rejected at this stage. 18. Learned court below is directed to expeditiously proceed with the trial of the case as soon as practicably possible, within one year from the date, certified copy of the order is placed before it. 19. The present accused-applicant may have right to avail remedy of bail afresh after expiry of aforesaid period.