Friday, February 3, 2023

Allahabad High Court denies bail to gangrape accused, held under POCSO Act in Amroha

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The Allahabad High Court has dismissed the bail application of a man, accused in a gangrape case, and arrested under the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The Single-Judge Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Application filed by Pushpendra Chauhan.

By means of the bail application, the applicant seeks bail in Special Sessions Trial arising out of Case under Section 376D Indian Penal Code and Sections 5/6 of POCSO Act at Police Station Hasanpur, District Amroha, during the pendency of trial.

The facts of the case are that the victim was in touch with the applicant through mobile chatting. On 17.01.2020, the victim had gone to the house of her aunt and at about 06:30 pm, she had gone to the crossing at Gajraula and the applicant is stated to have enticed her away on the pretext of giving her some gifts on the promise that they shall return within a period of one hour. On the way to Hasanpur, the applicant is stated to have taken her in a room near tubewell wherein one unknown person was standing guard, armed with a country-made pistol and the applicant is stated to have committed rape to the victim.

It is also alleged in the FIR that after some time, co-accused Jaiveer Chauhan and Kovind Chauhan and the said unknown person were also stated to have committed rape on the victim and later on, threatened to kill her father and brother if she ever revealed their identity to anyone.

It is also alleged in the FIR that the applicant had deleted all the chats from the mobile phone of the victim at the time of said incident. The victim is also stated to have been threatened by the applicant of his connections in high echelons of the society. Somehow the victim had contacted her father and also managed to dial 100, whereupon the police is stated to have retrieved her.

The FIR was lodged on 18.01.2020 at about 05:10 PM by the victim/informant against the applicant, co-accused and one unknown person u/s 376D & 506 IPC and Section 5/6 of POCSO Act.

The Counsel for the applicant has stated that the applicant has been falsely implicated in the case. The victim is a consenting party.

Counsel has further stated that the FIR is delayed by about eight hours and there is no explanation of the said delay caused. It is indicated in the FIR itself that the victim had called the police in the morning itself and she was retrieved by the police.

Counsel has further stated that as per ossification test report, the age of the victim was 18 years.

Counsel for the applicant has also placed much reliance upon the settled case law of the Apex Court in Sushil Kumar vs Rakesh Kumar, wherein it has been stated that it is more often in the Indian Society that a person shows the age of their wards much below than their actual age.

Counsel has vehemently argued that the final report of the police categorically indicates that no offence of rape has been committed by the applicant and he has to be tried on account of the age of minority of the victim. The Apex Court in umpteen number of cases has opined that a leverage of two years may be granted to the applicant with respect to the age referred in ossification test report.

Counsel for the applicant has also stated that to date, no efforts have been made and it has not been revealed as to who was the unknown person who was carrying a country made pistol and threatened the victim at the time of offence. At the time of submitting the final report (charge-sheet), the Investigating Officer was pleased to exonerate the co accused persons altogether from all the offences.

As per the CDRs, the said co-accused persons, namely, Jaiveer Chauhan and Kovind Chauhan were not found to be present at the place of occurrence.

Counsel for the applicant has further stated that even the Investigating Officer has not found the applicant to have committed the offence rather the applicant has been made an accused only on the basis of age or minority of the victim. Neither the injuries sustained by the victim have been disclosed in the FIR nor in her statements recorded u/s 161 and 164 CrPC. In the injury report, no duration of the injuries has been indicated which falsifies the prosecution story.

Counsel has also stated that the injury report indicates that hymen represented old healed tags meaning thereby the victim was used to sexual intercourse.

Counsel for the applicant has also stated that the order passed by the High Court on 30.3.2022 granting bail to the applicant is correct.

Counsel has also stated that the Apex Court has not cancelled the bail of the applicant rather has remanded back the bail application to be re-heard on merits. The Apex Court at the time of remanding the matter back has even granted interim protection to the applicant till 30.11.2022. The applicant has no other criminal history except two cases in which a closure report has already been filed and, therefore, the applicant deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with the trial.

Per contra, Shivam Yadav, counsel for the informant has vehemently opposed the prayer for bail and has categorically stated at Bar that as per the school certificate of the victim, her age is 17 years and 4 months only. Her date of birth is 10.9.2002 and as per her medical report, her age is 18 years.

Counsel has further stated that as per the settled law of the Apex Court, a leverage of two years may be granted on either side and why not, it should be read on the lower side.

“The age of the victim is just above 17 years, her date of birth being 10.09.2002. Thus, the consent, if any, pales into insignificance. In addition to it even if, as suggested by the counsel for the applicant, the consent is presumed, willingness was absent as is amply indicated by the medical examination report of the victim. The nature, the seat of injury just deflates the claim of defence that it was not rape.

The Courts are under duty to deal with cases of such nature with utmost responsibility and sensitivity. It is impudent to look for expression willingness or unwillingness. The act was resisted by her is too obvious by the medical report and that brings the act within the definition of rape as it was against her will. It is true that the liberty of the applicant is at stake but the Courts have to look into the larger interest of the society as well and even the interest of the victim/accuser has also to be taken into consideration as of late even the role of the victim has been accorded a wider view in light of the amendment in the CrPC by adding the definition of victim u/s 2(wa).

Considering the rival submissions adduced by the counsel for the parties, the facts of the case, evidence adduced and also considering the nature of offence, I do not find it a fit case for granting bail to the applicant”, the Court observed while dismissing the bail application.

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