# Shabbir v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2021) 6 ILRA 379
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-15
- **Case number:** Bail No. 1012 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shabbir-v-state-of-u-p-anr-opp-parties-47105
- **Pages:** 3

## Headnote

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 363, 366, 376 & 506
, The Protection of Children From Sexual
Offences Act, 2012 - Section 3/4, Section
29 - presumption as to certain offences,
Section 30 - Presumption of culpable
homicide
,
The
Scheduled
Castes
/Scheduled
Tribes
(Prevention
from
Atrocities) Act, 1989 - Section 3(2)(5) ,
The Code of Criminal Procedure, 1973 -
Sections 161 & 164 .

Penetrative offence under POCSO Act against
accused-applicant - age of victim below 16 years
- Statements of victim under Section 161 Cr.P.C.
and 164 Cr.P.C. are intact ,believable and
reliable - No explanation of the incident made in
the affidavit in support of bail-application .

HELD:-Section 29 of the POCSO Act makes a
presumption
of
the
offence,
since
the
allegations made by the victim girl remains
unrebutted,
therefore,
prima
facie
the
presumption of commission of offence by the
present accused-applicant is constituted. 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. Accusedapplicant is capable of tampering the evidences
and affect the witness adversely. (Para - 15,16)
Bail application rejected. (E-6)

## Text

6 All. Shabbir Vs. State of U.P. & Anr.
379
(2021)06ILR A379
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 1012 of 2021

Shabbir ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Anil Kumar Srivastava, Ravindra Kumar Dwivedi

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - Bail - Indian Penal
Code, 1860 - Sections 363, 366, 376 & 506
, The Protection of Children From Sexual
Offences Act, 2012 - Section 3/4, Section
29 - presumption as to certain offences,
Section 30 - Presumption of culpable
homicide
,
The
Scheduled
Castes
/Scheduled
Tribes
(Prevention
from
Atrocities) Act, 1989 - Section 3(2)(5) ,
The Code of Criminal Procedure, 1973 -
Sections 161 & 164 .

Penetrative offence under POCSO Act against
accused-applicant - age of victim below 16 years
- Statements of victim under Section 161 Cr.P.C.
and 164 Cr.P.C. are intact ,believable and
reliable - No explanation of the incident made in
the affidavit in support of bail-application .

HELD:-Section 29 of the POCSO Act makes a
presumption
of
the
offence,
since
the
allegations made by the victim girl remains
unrebutted,
therefore,
prima
facie
the
presumption of commission of offence by the
present accused-applicant is constituted. 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. Accusedapplicant is capable of tampering the evidences
and affect the witness adversely. (Para - 15,16)
Bail application rejected. (E-6)

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out through
video conferencing.

2. Learned counsel for the bailapplicant 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 tubewell 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
380 INDIAN LAW REPORTS ALLAHABAD SERIES
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 bailapplicant 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 bailapplication,
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. 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-applicantShabbir 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. 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
6 All. Vishal Kharwar @ Veetu Vs. State of U.P.
381
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 accusedapplicant are enough to dis-entitle 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 accusedapplicant 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 it's 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. Further, Section 29 of the
POCSO Act makes a presumption of the
offence, since the allegations made by the
victim girl remains unrebutted, 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 bailapplication 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.
----------

(2021)06ILR A381
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 1118 of 2021

Vishal Kharwar @ Veetu ...Applicant
Versus
State of U.P. ...Opp. Party