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2020 DIGILAW 67 (UTT)

Vineet Kumar v. State Of Uttarakhand

2020-02-03

RAVINDRA MAITHANI

body2020
JUDGMENT Ravindra Maithani, J. (Oral) - The applicant Vineet Kumar is in custody in Case Crime No. 454 of 2019 under Sections 376A and 376B IPC and Section 5(m) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) at Police Station Kotwali Haridwar, District Haridwar. Based on this case, Special Sessions Trial No. 128 of 2019 State v. Vineet' is pending in the Court of Special Judge POCSO/Additional District Judge, Haridwar. The applicant has sought his release on bail. 2. Heard learned counsel for the parties and perused the records. 3. In the instant case, an F.I.R. was lodged by the father of the victim on 14.06.2019 at 02:23 P.M. at Police Station Kotwali Haridwar under Sections 9 and 10 POCSO Act and Section 376 r/w Section 511 I.P.C. According to the F.I.R., on 13.06.2019 the wife and the daughter of the first informant, who is the victim aged 11 years, had come to the first informant at Shree Ganesh Yatri Niwas, Haridwar. On 14.06.2019, the first informant directed the applicant, who was working with him, to prepare maggi for the victim. The victim also accompanied the applicant. Thereafter, the victim returned crying and revealed it to her mother that the applicant bit her on her lips, disrobed her and himself and tried to do galat kaam with her. Based on this F.I.R., investigation was conducted and charge-sheet was submitted against the applicant, which is the basis of Special Sessions Trial No. 128 of 2019. 4. Mr. Tapan Singh, learned counsel for the applicant, would argue that it is a case of false implication; the incident was allegedly occurred at 10:00 A.M. in the morning and, when medically examined on the same day, the duration of the injury was found 24 hours. According to the learned counsel it would indicate that the injury had been sustained by the victim long before the alleged time of incident. It is also argued that the victim is unable to speak and the statement of the victim, under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') has been recorded with the help of her mother. It is also argued that the first informant has not supported the case during trial, to the extent as to who was informed by the victim soon after the alleged incident. It is also argued that the first informant has not supported the case during trial, to the extent as to who was informed by the victim soon after the alleged incident. Therefore, it is argued that it is a case fit for bail. 5. On the other hand, Mr. Atul Arya, learned Assistant Government Advocate, would submit that the victim is a girl of tender age who is unable to speak and the applicant committed the offence with her. It is not a case fit for bail. 6. It is also argued that the applicant was working with the first informant in running a lodge called Shree Ganesh Yatri Niwas. The F.I.R. recites that the victim is unable to speak clearly. The incident was allegedly occurred at 10:00 A.M. in the morning and the victim was medically examined on the same day at 03:34 P.M. In the medical examination, an abrasion was found on the lips of the victim. According to the Doctor, the duration of the abrasion was within 24 hours. It does not mean that the abrasion occurred prior to 10:00 A.M. According to the opinion of the Doctor the abrasion was caused sometime within the duration of 24 hours prior to the time of medical examination. 7. In the medical examination also, description of the incident has been recorded and, according to it, the victim is a mentally challenged girl. The statement of the victim, under Section 164 of the Code, was recorded on 15.06.2019 with the help of her mother. The Court below, while recording the statement of the victim, observed that the victim is a girl of 10 years and is unable to speak clearly, therefore, assistance of her mother was taken. 8. There are provisions in the Indian Evidence Act, 1872, as to how statement of persons with disability shall be recorded. These provisions may perhaps be further considered when the victim is examined at the trial, the stage, which is yet to come. The first informant, who is the father of the victim, has been examined at the trial. At the stage of the bail application much of the scrutiny of the evidence is not expected of. Suffice it to say, the first informant has supported the contents of the F.I.R. and the prosecution story. 9. The incident occurred at 10:00 A.M. in the morning. At the stage of the bail application much of the scrutiny of the evidence is not expected of. Suffice it to say, the first informant has supported the contents of the F.I.R. and the prosecution story. 9. The incident occurred at 10:00 A.M. in the morning. F.I.R. was lodged on the same day, and the medical examination of the victim was also conducted. An abrasion was found on the lips of the victim. The statement of the victim was recorded under Section 164 of the Code with the help of her mother. At trial, the first informant has already been examined. The victim is yet to be examined. 10. Having considered the rival submissions, under the facts and circumstances of the case, this Court is of the view that this is not a case fit for bail. At this stage, the applicant is not entitled to be enlarged on bail. The instant bail application deserves to be rejected. 11. The bail application is, accordingly, rejected.