IMPORTANT POINT
The testimony of the prosecutrix in sexual assault cases is crucial and can be sufficient for conviction, with the presumption of guilt under the POCSO Act placing the burden of proof on the accused.

JUDGMENT :

RAJESH SINGH CHAUHAN, J.

1. Heard Sri Vaibhav Kalia, learned counsel for the applicant and Sri G.D. Bhatt, learned Additional Government Advocate for the State.

2. Despite the service of notice upon opposite party No. 2, no one has appeared on behalf of opposite party No. 2. As a matter of fact, no one has appeared on behalf of opposite party No. 2 on any date.

3. This is the second bail application as the first bail application bearing Criminal Misc. Bail Application No. 5158 of 2022; Irshad Ahmad vs. State of Uttar Pradesh & others; has been rejected vide order dated 30.11.2022 passed by Hon'ble Dinesh Kumar Singh, J. The order dated 30.11.2022 reads as under:

“1. Heard learned counsel for the applicant, Sri Ran Vijay Singh, learned A.G.A. and perused the record.

2. The present application under Section 439 Cr.P.C. has been filed by the applicant Irshad Ahmad seeking bail in FIR/ Case Crime No. 247 of 2021 under section-376, 354, 504, 506 I.P.C. & Section-(1)(w), 3(1)(Dha), 3(2)(v) SC/ST Act and section 3/4 and section 7/8 POCSO Act and section 67, I.T. Act, Police Station-Pachpedwa District-Balrampur.

3. The allegation against the accused-applicant is of committing rape on the prosecutrix, who is 17 years old girl and a student of Class XI. It is further alleged that the accused-applicant had made some video-clips and clicked indecent photographs of the victim without clothes and sent these indecent photographs on Whatsapp to other persons. The accused-applicant was not allowing the prosecutrix to get married and blackmailing her on the basis of alleged photographs and video-clips. The prosecutrix in her statements recorded under sections 161 and 164, Cr.P.C. has specifically alleged that the accused-applicant raped her and clicked the photo and video-slips and threatened her that if she would tell anybody about the incident, he shall make the video viral and would not allow her to marry anyone else. When the prosecutrix told the incident to her parents, the parents went to the house of the accused-applicant, however, the brothers of the prosecutrix ran them away.

4. Considering the nature of allegations against the accused-applicant and the stand of the prosecutrix in her statements recorded under section 161 and 164, Cr.P.C. this court does not deem it appropriate to enlarge the accused-applicant on bail at this stage and, therefore, the bail application is rejected.

5. The accused-applicant may revive the bail plea after the prosecutrix gets examined in the court.

6. The trial court should make endeavour to record the statements of the prosecutrix and other witnesses of fact expeditiously, preferably within a period of six months.

7. Let a copy of this order be transmitted to the learned trial court for necessary compliance.”

4. Learned counsel for the applicant has stated that despite the specific direction being issued by this Court on 30.11.2022 (supra) to record the evidence of the prosecutrix and other witnesses of fact within a period of six months but those statements have not been recorded within time so stipulated.

5. As per learned counsel for the applicant, the present applicant ( Irshad Ahmad) is languishing in jail since 28.12.2021 in Case Crime /F.I.R. No. 247 of 2021, under Sections 376, 354, 504 & 506 I.P.C. and Section 3 (1) (w) (i), 3 (1) (Dha) & 3 (2) (v) of S.C./S.T. Act and Section 3/4 and 7/8 of Protection of Children from Sexual Offences Act (in short POCSO Act) and Section 67 of Information Technology Act, Police Station-Pachpedwa, District-Balrampur.

6. Learned counsel for the applicant has stated that he shall not address those grounds which have already been considered by this Court while rejecting the first bail application but shall address only those grounds which have emerged after recording of the statement of the prosecutrix and other witnesses.

7. Precisely, the fact of the present case have been narrated in para-3 of order dated 30.11.2022 (supra).

8. Attention has been drawn towards the sup