Suraj Singh Bisht vs State Of Uttarakhand
2022 Latest Caselaw 2028 UK

     IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL


                  Bail Application IA No. 1 of 2021
                                  in
                  Criminal Appeal No.328 of 2021

Suraj Singh Bisht                  ................                 Appellant

                                   versus

State of Uttarakhand               ................              Respondent


Ms. Manisha Bhandari, learned counsel, assisted by Mr. Dhruv Chandra,
learned counsel for appellant/applicant
Mr. J.S. Virk, learned Deputy Advocate General with Mr. Rakesh Joshi, Brief
Holder for the State.

                                -----------

                     Order dated: 07.07.2022


Coram :       Hon'ble Sanjaya Kumar Mishra, J.

Hon'ble Alok Kumar Verma, J.

Upon hearing the learned counsels, the Court made the following Order (per S.K.Mishra, J.)

1. Heard Ms. Manisha Bhandari, learned counsel, assisted by Mr. Dhruv Chandra, learned counsel for the appellant/applicant and Mr. J.S.Virk, learned Deputy Advocate General, assisted by Mr. Rakesh Joshi, Brief Holder for the State.

2. This application is filed under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred as "the Code", for brevity) for suspension of sentence and grant of bail upon appeal. The appellant Suraj Singh Bisht has been convicted by the learned Fast Track Court/Additional Sessions Judge/ Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO), Haldwani, District Nainital, in Special

Sessions Trial No. 49 of 2018, for the offences under Sections 376(3) of the Indian Penal Code, 1860 read with Sections ¾ of the POCSO Act. The appellant has been sentenced to undergo 20 years rigorous imprisonment along with fine of Rs. 50,000/-, in default of payment of fine amount, he was to undergo a further simple imprisonment for a period of six months.

3. It is not disputed at this stage that the victim was examined as PW3, who was a minor at the time of the occurrence. Learned counsel for the appellant/applicant, namely, Ms. Manisha Bhandari would submit that if the entirety of the case is taken into consideration, there is a statable probability that the appellant has not committed any offence of rape or penetrative sexual assault on the victim. It is a case of the prosecution that the incident took place on 25.09.2018, at 1:30 P.M., in the house of the appellant, whereas the victim-girl has sent message through facebook to him and also called him 12 times on mobile after the incident. Learned counsel for the appellant/applicant would further submit that the appellant himself has examined as DW1 and in his statement he stated that he has not committed any offence. His statement was recorded on oath. Moreover, the cellular phone of the appellant was seized by the Police and from the contents of the Cellular Phone, DW2, who happens to be sister of the appellant, has proved the exchange of the messages i.e. between the victim and the appellant even after the incident.

4. Learned counsel for the State, namely, Mr. J.S.Virk, learned Deputy Advocate General would argue that at this stage, the Court should not grant the bail to the appellant/applicant and suspend the sentence on the ground that there is no reason for the victim girl to state under oath, falsehood implicating him in a very serious crime, like rape. He would further argue that in his statement under Section 313 of the Code, the appellant has stated that a false case has been registered against him as the parents of the victim girl was pressurizing him to marry the victim. A statement not supported by the DW1, the appellant himself, in his evidence recorded after taking permission under Section 315 of the Code.

5. Thus, keeping in view, the exchange of messages between the appellant and the victim-girl after the alleged incident, the miscalls given by the victim girl to the appellant after the incidence and her denial to her sending of the messages to the appellant, and absence of any injury or signs of any recent sexual intercourse in the medical report, prima facie, shows that she might be stating falsehood and, therefore, there is a statable probability that in the ultimate analysis, we may come to the conclusion that the prosecution has not establish its case beyond all reasonable doubts. These observations are however, only for the purpose of consideration of bail under Section 389 of the Code and shall have no bearing on the final judgment as and

when the case is taken up for final arguments and judgment. Moreover, it is seen that the appellant is a young man, who was 20-21 years at the time of the alleged occurrence and he is languishing in jail for more than 3 ½ years, he is a permanent resident of Tedhagaon, PS Ram Nagar, District Nainital and, therefore, there is no reasonable apprehension of his absconding, this Court is inclined to suspend the sentence and grant bail to the appellant.

6. Accordingly, the application for bail is, hereby, allowed. The sentence awarded by the learned Court Fast Track Court/Additional Sessions Judge/ Special Judge, Protection of Children from Sexual Offences Act, 2012 (POCSO), Haldwani, District Nainital, in Special Sessions Trial No. 49 of 2018 is suspended. The appellant shall be released on bail, on such suitable terms and conditions, as the Special Judge, POCSO, Haldwani, District Nainital, deems fit and proper.

7. The matter may be listed for final hearing on 29th September, 2022 for final disposal.

8. Urgent certified copy of this order be granted on proper application.

(Alok Kumar Verma, J.) (S.K.Mishra, J.)

Kaushal