Court No. - 79

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25599

of 2019

Applicant :- Jalaluddin @ Chhote

Opposite Party :- State Of U.P. And Anr.

Counsel for Applicant :- Sanjay Shukla,Ashutosh

Tiwari,Gaurav Kakkar

Counsel for Opposite Party :- G.A.,Raj Kumar Singh,Sunita

Rao

Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Gaurav Kakkar, learned counsel for the applicant and

the learned A.G.A.

2. The applicant has approached this Court by way of filing the

present Criminal Misc. Bail Application seeking enlargement

on bail in Case Crime No.94 of 2019, under Sections 376 and

354 of I.P.C. and 3/4 of Protection of Children from Sexual

Offences (POCSO) Act, Police Station-Chiluatal, District-

Gorakhpur after rejection of his Bail Application vide order

dated 30.5.2019 passed by learned Additional Sessions Judge,

Court No.1, Gorakhpur.

3.Mother of the victim submitted a written report alleging that

the applicant used to harass her minor daughter on her way to

and fro of school which led her to drop the school and she took

admission in another school. About 6 months ago, applicant and

his two associates stopped her daughter on the way to school

and under threat of firearm tried to outrage her modesty. At that

time due to fear no complaint was made. About 10 days ago, the

applicant called her daughter at his house and forcefully under

threat he committed rape.

4. From the records it appear that the victim in her statement

recorded under Section 161 Cr.P.C. supported the version of the

F.I.R., she stated that the applicant raped her many times.

However, the victim in her first statement recorded under

Section 164 Cr.P.C. has not supported the prosecution case and

specifically denied about any such occurrence of rape. She also

stated that due to prior enmity with the family of the applicant,

her father has lodged a false case. Similarly, in her second

statement recorded under Section 164 Cr.P.C., she denied about

any occurrence of rape.

5. Learned counsel for the applicant submitted that it is a case

of false implication. The victim herself stated that no such

incident of rape had ever occurred. Age of the victim on the

basis of radiological report is opined to be about 18 years.

However, the age of the victim as referred in the transfer

certificate of the school is 7.8.2005. Learned counsel further

submitted that the medical evidence has not supported the

prosecution case. Admittedly, there was prior enmity, therefore,

prima-facie it is a case where applicant has been falsely

implicated. The applicant has no other reported criminal

antecedent and he is languishing in jail since 4.4.2019, there is

no likelihood of early disposal of trial and the applicant

undertakes that if enlarged on bail, he will never misuse his

liberty and will co-operate in the trial.

6. Per contra, learned A.G.A. has vehemently opposed the bail

application and submitted that the victim is a minor girl

according to the date of birth in the school leaving certificate.

She has supported the prosecution case in her statement

recorded under Section 161 Cr.P.C. as well as in the statement

at the time of her medical examination. In the case of a minor

even the consent is immaterial. However, it is not disputed that

the victim in both of her statements recorded under Section 164

Cr.P.C. has completely denied the prosecution case.

7 (A). Law on bail is well settled that 'Bail is a rule and jail is

an exception'. Bail should not be granted or rejected in a

mechanical manner as it concerns liberty of a person. At the

time of considering an application for bail, the Court must take

into account certain factors such as existence of a prima facie

case against the accused, gravity of the allegations, severity of

punishment, position and status of the accused, likelihood of the

accused fleeing from justice and repeating the offence,

reasonable apprehension of tampering wi