Uttarakhand High Court
CRLA/202/2020 on 23 June, 2022
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Bail Application (CRMA/856/2020)
In
CRLA No.202 of 2020
Shri Sanjaya Kumar Mishra, ACJ.
Shri Ramesh Chandra Khulbe, J.
Mr. Vinod Sharma, the learned counsel
for the appellant.
Mr. J.S. Virk, the learned Deputy
Advocate General assisted by Mr. Rakesh
Joshi, the learned Brief Holder for the State of
Uttarakhand.
Heard.
Admit the appeal.
Also heard the learned counsel for the
parties on the bail application.
This application for bail and suspension of
sentence (CRMA No.856 of 2020) has been filed
under Section 389 of the Code of Criminal
Procedure (hereinafter referred to as "the
Cr.P.C."). The appellant, namely, Sarabjeet,
who has been convicted and sentenced to
twenty years' imprisonment under Section
376-D IPC and Section 6 of the POCSO Act in
Special Sessions Trial No.130 of 2018 (Case
Crime No.390 of 2018) decided on 03.02.2020
by the Additional Sessions Judge, Dehradun,
has prayed for suspension of sentence and
grant of bail upon appeal.
The aforesaid sentences were directed to
run concurrently.
Learned counsel for the appellant would
argue that the co-accused persons, who were
juveniles, have already been released and
parity should be maintained. He would also
argue that the entire case of the prosecution
is based on embellishments and improvement
and, therefore, it should be disbelieved. He
relied on the document which is not part of
the record wherein it is alleged that CWC,
Dehradun enquired into the matter and there
is only allegation of outraging the modesty
and not of gang rape in the report.
Per contra, learned counsel for the State
vehemently opposed the application for bail
and suspension of sentence stating that they
were not found guilty by the Juvenile Justice
Board and acquitted the revisionists. But upon
appeal such decision has been revised by the
Special Judge (POCSO) and they have been
held guilty.
We have perused the record, especially
the statement of the victim, in which she has
categorically stated about the commission of
offence and specifically identified this
appellant-Sarabjeet. Moreover, the following
citations are relied upon by the learned
counsel for the appellant-Sarabjeet:-
1) C.N. Siva Shankaran SPA (Crl.)
No.2028/2022 order dated
08.04.2022.
2) Mahendra Subhashbhai Vankhede Vs.
State of Gujarat, (2017) 15 SCC 591
3) Takht Singh and Others Vs. State of
M.P. (2001) 10 SCC 463.
4) Salim Javed Vs. State of Rajasthan
(2006) 9 SCC 602.
As far the case of C.N. Siva Shankaran
(supra) is concerned no ratio has been decided
by the Hon'ble Supreme Court in it. So, it is not
applicable to the present case.
As far as the case of Mahendra
Subhashbhai Vankhede (supra) is
concerned, we find that that is not a case of
gang rape and the appeal was mainly against
imposition of lesser sentence which was not
interfered by the Hon'ble Supreme Court. So
ratio is not applicable to the present case and
facts are clearly distinguishable.
As far as rest of the cases relied upon by
the learned counsel for the appellant that
Hon'ble Supreme Court has granted bail to
several persons on the ground that they were
in custody for more than three and half years
and there is no possibility of early hearing of
the appeal pending before the Court, in that
view of the matter and in view of the
amendment in Section 436A of the Cr.P.C.
1973, we cannot take into consideration any
application for bail unless 50% sentence is
already undergone, which in a case of
imprisonment for life shall be reckoned as 20
years. So, we are not inclined to follow the
later 3-4 judgments and findings of the CWC,
which is not being part of the records in the
Sessions Trial, should not be given weightage
without affording the reasonable opportunity of
cross-examining the witnesses involved in that
report.
In that view of the matter, we are of the
opinion that in the ultimate analysis there is no
stateble probability that the appellant would be
found not guilty of the gang rape and POCSO
offences and hence, we are not inclined to
suspend the sentence and grant bail to the
appellant. Accordingly, the present Bail
Application (CRMA/856/2020) is, hereby,
dismissed.
Since, the paper book is ready, hence,
the mater be listed for final disposal in the
fourth week of August, 2022.
(R.C. Khulbe, J.) (S.K. Mishra, ACJ.)
23.06.2022
SS/RB
