Uttarakhand High Court
"State vs Unknown on 27 July, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
BAIL APPLICATION No. 1758 of 2019
in
CRIMINAL APPEAL No.35 of 2018
27TH JULY, 2021
Between:
Abu Hasan ...Appellant
and
State of Uttarakhand. ...Respondent
Counsel for the : Mr. Arvind Vashisth, learned
appellant. Senior Advocate assisted by Ms.
Priyanka Agarwal, learned
counsel.
Counsel for respondent. : Mr. J.S. Virk, learned Deputy
Advocate General for the State.
The Court made the following:
ORDER: (per Hon'ble Justice Sri Alok Kumar Verma)
This application has been filed on behalf of the
appellant Abu Hasan for bail in this appeal.
2. The instant appeal has been filed against the
judgment dated 12.12.2017, passed by the learned Fast
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Track Court/Special Judge (POCSO)/Additional Sessions
Judge, Dehradun in Special Sessions Trial No. 71 of 2015,
"State vs Abu Hasan", whereby the appellant has been
convicted and sentenced to undergo rigorous
imprisonment for 10 years along with a fine of Rs.10,000/-
for the offence punishable under Section 4 of the
Protection of Children from Sexual Offences Act, 2012; he
has been convicted and sentenced for life imprisonment
along with a fine of Rs.10,000/- for the offence punishable
under Section 302 of IPC; he has been convicted and
sentenced to undergo rigorous imprisonment for two years
along with a fine of Rs.5,000/- for the offence under
section 201 of IPC and he has been further convicted and
sentenced to undergo rigorous imprisonment for five years
along with a fine of Rs.2,000/- for the offence under
Section 366 A of IPC. All the sentences are directed to run
consecutively.
3. Heard Mr. Arvind Vashisth, the learned Senior
Advocate assisted by Ms. Priyanka Agarwal, the learned
counsel for the appellant and Mr. J.S. Virk, the learned
Deputy Advocate General for the State through video
conferencing.
4. Mr. Arvind Vashisth, the learned Senior
Advocate appearing for the appellant submitted that the
appellant has been implicated in this matter. According to
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the prosecution story, there are three circumstances
against the appellant; (i) last seen (ii) recovery of the
dead body and (iii) confessional statement of the appellant
before the police. He further submitted that the confession
before the police is not admissible in the terms of Section
25 of the Evidence Act; in support of the said submission,
he relied upon the judgment of the Hon'ble Supreme Court
in State of A.P. vs. Gangula Satya Murthy, (1997) 1
SCC 272, and a judgment of Allahabad High Court in
Sangam Lal vs. State of U.P., 2001 SCC OnLine
Allahabad 600. Mr. Arvind Vashisth, the learned Senior
Advocate appearing for the appellant, further submitted
that there are material contradictions in the statements of
the prosecution witnesses, therefore, last seen theory and
the fact of the recovery of the dead body are not proved
against him.
5. On the other hand, Mr. J.S. Virk, the learned
Deputy Advocate General for the State, submitted that the
informant lodged an information with the police station
with the averments that her daughter, aged about 9 years,
was missing. She was searched, but she could not be
traced. A missing report was lodged. During the search of
the missing child, the name of the appellant came into
light and at the instance of the appellant, the dead body of
the deceased was recovered. The prosecution witness
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(PW-2) has categorically stated in her statement that the
appellant took the victim with him. The Witness (PW-2) is
a witness of the last seen. He further submitted that the
appellant used to do magic and one plastic bag with
printed books, relating to the magic, were recovered on
the pointing out of the appellant. He further submitted
that during the trial, evidence are produced to the effect
that several photographs of the victim were found in the
mobile of the appellant. According to the post-mortem
report, multiple punctured wounds were found on the
chest of the deceased.
6. In the case of State of U.P. vs. Amarmani
Tripathi, (2005) 8 SCC 21, the Hon'ble Apex Court has
held that it is well settled that the matters to be
considered in an application for bail, are (i) whether there
is any prima facie or reasonable ground to believe that the
accused had committed the offence, (ii) nature and gravity
of charge, (iii) severity of the punishment in the event of
conviction, (iv) danger of the accused absconding or
fleeing, if released on bail, (v) character, behavior, means,
position and standing of the accused, (vi) likelihood of the
offence being repeated, (vii) reasonable apprehension of
the witnesses being tampered with, and (viii) danger, of
course, of justice being thwarted by grant of bail.
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7. In determining whether to grant bail, both the
seriousness of the charge and the severity of the
punishment should be taken into consideration. While
dealing with an application for bail, there is a need to
indicate in the order, reasons for considering why bail is
being granted particularly where the appellant is convicted
in a serious offence. Any order dehors reasons suffers
from non-application of mind as observed by the Hon'ble
Supreme Court in the case of Ram Govind Upadhyay vs.
Sudarshan Singh and others, (2002) 3 SCC 598.
8. At the stage of considering the bail application, a
detailed examination of evidence and elaborate of the
documentation of the merit of the case has not to be
undertaken. The grant or denial is regulated, to a large
extent, by the facts and circumstances of each particular
case.
9. Therefore, without commenting on the merit of
the case, there is no good ground to release the appellant,
involved in this heinous crime, on bail. The bail application
is rejected accordingly.
10. It is clarified that the observations made
regarding the bail application are limited to the decision of
this bail application as to whether the bail application
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should be allowed or not. The said observations shall not
effect the merit of this appeal.
_____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
___________________
ALOK KUMAR VERMA, J.
Dt: 27th July, 2021
JKJ /NEHA
