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2024 DIGILAW 107 (UTT)

Subodh Kumar v. State of Uttarakhand

2024-02-21

RAVINDRA MAITHANI

body2024
JUDGMENT : RAVINDRA MAITHANI, J. 1. Since all these bail applications arise from one and the same FIR, they are decided by this common order. 2. Applicants Subodh Kumar and Sonu Tejiyan are in judicial custody in FIR/Case Crime No. 475 of 2022, under Section 376 (D), 376 (D) (B), 363, 366, 366A IPC and Section 5 (g) (m)/6 of the Protection of Children From Sexual Offences Act, 2012 (“the Act”) and Applicant Mahak Singh is in judicial custody under Section 376 of IPC, Police Station Kotwali Roorkee, District Haridwar. They have sought their release on bail. 3. Heard learned counsel for the parties and perused the record. 4. According to the prosecution case, there are two victims in the case, a woman, who is a beggar and her young daughter, who is six years of age. On 24.06.2022, when after the day’s work, the victims were returning to their place of residence, it is the prosecution case that the applicant Mahak Singh @ Sonu offered them lift and raped the elderly victim. Thereafter, four persons came in a car and they also raped both the victims. Police was informed. The victims were taken to hospital. There were injuries on the young victim; she was medically examined; she told about the incident to the doctor also. There were many injuries on the private parts of the young victim. 5. Learned Senior Counsel appearing for the applicant Subodh Kumar would submit that the prosecution case is not reliable. The statement of the elderly victim is wavering. The incident, as reported in the FIR has not been so stated by the elderly victim, in her statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (“the Code”) and her statement in the court is also quite distinct. It is argued that it is an incident of night. There has been no test identification parade of the accused. Learned Senior Counsel would submit that PW1, the elderly victim has stated that when the applicants were arrested, she was present there. It is argued that she is not a person of resources so as to make her presence at every stage of trial. Learned Senior Counsel would also submit that the applicants were not known to the victims earlier. They have no chances to identify the assailants. 6. It is argued that she is not a person of resources so as to make her presence at every stage of trial. Learned Senior Counsel would also submit that the applicants were not known to the victims earlier. They have no chances to identify the assailants. 6. Learned counsel appearing for the applicant Mahak Singh would adopt the arguments, as advanced by learned Senior Counsel for the applicant Subodh Kumar. He would submit that there are great variations in the statements of PW3, the elderly victim. He would also submit that the applicant Mahak Singh @ Sonu may not be implicated under the provisions of the Act, because as per PW3, the elderly woman, the applicant Mahak Singh @ Sonu did not commit any offence with the minor victim. 7. Learned counsel appearing for the applicant Sonu Tejiyan also adopts the arguments, as advanced by learned Senior Counsel for the applicant Subodh Kumar. He would submit that there is no Test Identification Parade conducted, therefore, the applicant is entitled to bail. 8. Learned State counsel would submit that one of the victims PW3, the elderly victim has supported the prosecution case. She was a beggar, a very poor woman. The variations in her statements are but natural. Learned State counsel would submit that, in fact, the police was informed at 108 and it is thereafter, the victims were recovered from the place of incident. This has been so stated by PW4 Sunny Kumar Gautam and PW5 Sandeep. It is also argued that the minor victim sustained serious injuries. When examined medically, the doctor was also told about it. The minor victim was bleeding profusedly. There were clots also. There were tears in her private part and hymen was freshly torn. It is also argued that PW3, the elderly victim had identified the applicants in the court. 9. It is a stage of bail. Much of the discussion is not expected of. Arguments are being appreciated with the caveat that any observation made in this order shall have no bearing at any subsequent stage of the trial or in any other proceedings. 10. On behalf of the applicants, variations in the statements of PW3, the elderly victim has been referred to qua the statement of this victim recorded under Section 164 of the Code as well as the version in the FIR. 11. 10. On behalf of the applicants, variations in the statements of PW3, the elderly victim has been referred to qua the statement of this victim recorded under Section 164 of the Code as well as the version in the FIR. 11. Consistently, PW3, the elderly victim has stated that she and her minor daughter were raped by five persons. She has identified them in the court. She has assigned the role as to who did what. Is there any material variation or contradiction in the statements of PW3, the elderly victim? It may find scrutiny during trial. PW4 Sunny Kumar Gautam was driver of the ambulance. He has stated that when the call having been received, he reached at the place of occurrence. He found that both the victims were very scared. The minor victim has no trousers. She was bleeding from her private part. PW3, the elderly victim was also not able to speak. 12. Having considered, this Court is of the view that there is no ground to enlarge the applicants on bail. Accordingly, the bail applications deserve to be rejected. 13. The bail applications are rejected.