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2024 DIGILAW 1396 (ALL)

Abhishek v. State of U. P.

2024-05-23

ASHWANI KUMAR MISHRA, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : 1. This appeal has been admitted on 29.11.2021. Lower court record has been received. An objection has also been filed by learned AGA to the prayer made for suspension of sentence. It transpires that notices have not been issued to the informant, although the conviction is under the POCSO Act. 2. Learned counsel for the appellant places reliance upon the judgment of learned Single Judge of this Court in Junaid Vs. State of U.P. and another, passed in Criminal Misc. Bail Application No. 46998 of 2020, wherein this Court has clearly held that the obligation to serve notice upon the informant/victim is of the State and a procedure has already been evolved for service of such notice upon them. 3. Page 6 of the objection filed by the State contains the service of notice upon the informant. Once that be so, we find that the requirement of notice upon the informant is adequately met. No further notices are required to be issued to the informant/victim, particularly as the offence is otherwise against the State and is being prosecuted by the learned State Counsel. 4. An application for suspension of sentence and grant of bail is filed on behalf of the accused appellant Abhishek, who has been convicted in Special Session Trial No.46 of 2018 (State Vs. Abhishek), arising out of Case Crime No.101 of 2018, under Section 376, 506 IPC & 4 POCSO Act, Police Station Kurra, District Mainpuri, and the maximum sentence awarded to him is life imprisonment. The rest of the sentences are lesser sentences and all the sentences have been ordered to run concurrently. 5. As per the prosecution case on 23.2.2018 when the victim had gone to ease herself, she was grabbed by the accused persons and later she was subjected to sexual assault. F.I.R. was lodged on 25.2.2018. The victim has been medically examined on 26.2.2018 in which apart from her shoulder injury the doctor found her hymen to be ruptured and bleeding was present. The victim has specifically implicated the accused appellant of sexual assault upon her. 6. F.I.R. was lodged on 25.2.2018. The victim has been medically examined on 26.2.2018 in which apart from her shoulder injury the doctor found her hymen to be ruptured and bleeding was present. The victim has specifically implicated the accused appellant of sexual assault upon her. 6. Learned counsel for the appellant submits that the accused appellant is the uncle of the victim and on account of a property dispute with the informant, the appellant has been falsely implicated in the present case; independent witness has not supported the prosecution version; there exists fresh injury, which is impermissible after 24 hours, and medical has been held 3 days after the incident, as such, the injury report does not support the prosecution case. 7. Learned AGA has strongly opposed the prayer made for grant of bail on the ground that the victim is a minor, who has fully supported the prosecution case and the medico-legal report also supports the accusations made by the victim. 8. On behalf of appellant, reliance is placed upon the judgment of the Supreme Court in Rajasekar Vs. The State rep. by the Inspector of Police, reported in 2024 INSC 96 . It is submitted that accused appellant has no criminal history and is in jail for the last more than 6 years 4 months. 9. We have considered the facts of the case in which not only the victim has specifically implicated the accused of sexual assault but prima facie medico-legal report also supports the accusations made by the victim. Without commenting any further on the merits of the case, the prayer made for grant of bail is refused. Bail application is, accordingly, rejected. 10. Office is directed to prepare the paper books and list the appeal for hearing in the month of October, 2024. 11. Liberty stands reserved to the appellant to revive his prayer for bail, in the event the appeal is not heard despite appellant's cooperation within a period of two years.