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2020 DIGILAW 366 (UTT)

Salim v. State Of Uttarakhand

2020-10-06

RAVINDRA MAITHANI

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JUDGMENT Ravindra Maithani, J. - Applicant Salim is in judical custody in FIR No. 299 of 2018, under Section 376 and 506 IPC, 3/4 of the Protection of Children from Sexual Offences Act, 2012 (for short "the Act"), Police Station Kichha, District Udham Singh Nagar. He has sought his release on bail. 2. According to the FIR, on 12th September, 2018, the victim, a child of 14 years, was playing outside of his house, when the informant, who drives a tuktuk (a cycle rickshaw run on battery), enticed the victim and took him in his tuktuk in a dilapidated house. There the applicant sodomised him. The victim told the incident to his father, who lodged the FIR. 3. Learned counsel for the applicant would argue that since two year the applicant is in jail; the trial is not concluding although under Section 35 of the Act, the trial should have been completed within a year. But, yet the informant has not been examined and for ensuring his presence even the bailable warrant has been issued; learned counsel would also argue that age of the victim in the various documents is varied; according to the FIR, the victim is 14 years of age and according to the school record, his age is 13 years, but, in fact, it was argued that the victim was 16 years of age and the applicant was 20 years of age. Therefore, it is not possible for the applicant to commit such an act, as alleged against him. Learned counsel for the applicant would also submit that there are great contradictions in the statement of the victim himself recorded under Sections 161 and 164 of CR.P.C. 4. On the other hand, learned counsel for the State would submit that the age of the victim is 14 years and he has stated about the incident in his statement recorded under Sections 161 and 164 of Cr.P.C. In fact, it is argued that the victim has been examined in the Court and he has narrated the incident to support the prosecution. 5. The victim has been examined in the Court as PW1. He has confirmed the averments of the FIR. He speaks that when he was sodomised he cried also. The statement is quite in detail. 5. The victim has been examined in the Court as PW1. He has confirmed the averments of the FIR. He speaks that when he was sodomised he cried also. The statement is quite in detail. It is true that there is no medical evidence filed by the prosecution, but that is the matter relating to the appreciation of evidence. It is also true that the FIR is quite delayed. It was lodged on 16th September, 2018 but it would also fall for scrutiny during trial. It is also true that the trial should be concluded within a period of one year, but then that does not make any difference for the purpose of present controversy. 6. In the FIR, the age of the victim is recorded 14 years, and when examined in the court, the victim also states that his date of birth was 12th August, 2005; it means he had just completed 13 years on the date of incident. 7. Having considered the rival submissions, under the facts and circumstances of the case, this Court is of the view that it is not a fit case for bail. 8. The bail application of the applicant is rejected.