The Applicant/Appellant Is A ... vs Unknown
2022 Latest Caselaw 3662 UK

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                                     CRLA No.350 of 2022
                                     Hon'ble Sharad Kumar Sharma, J.

Mr. Lokendra Dobhal, Advocate, with Mr. Vinay Kumar, Advocate, for the appellant.

Mrs. Mamta Joshi, Brief Holder, for the State of Uttarakhand.

The applicant/appellant is a convict for the commission of the offence under section 376 (2) (n) and 506 of the IPC, which has resulted into a conviction as a consequence of the culmination of the Sessions Trial No.08 of 2021, "State Vs. Chandra Mohan Bhatt", as a consequence of the culmination of the sessions trial, he has been convicted to undergo ten years of rigorous imprisonment, and the fine of Rupees One Lakh only, has been imposed upon him for the commission of the offence under section 376 (2) (n) of IPC.

It has been argued by the learned counsel for the appellant/applicant, that the story of the prosecution cannot be believed, with because as per the observations made in the judgment impugned, the incident is said to have chanced on 03.11.2020, and a highly belated FIR was registered on 19.03.2021, apart from the fact that, he has argued that during the course of the trial he was on bail, after having being released on 05.04.2022, after having served about one year and 16 days of sentence, and in this period of bail he has never misuse the same.

His argument is further to the effect that no offence under section 376 (2) (n) of the IPC, could be said to have been made out, in view of the report submitted by the PW 4, the Lab Technician, as well as, exhibit 8, which was submitted by the Doctor, who had examined the victim who has observed that no spermatozoa was found in the swab, which was collected and sent for the examination, it was further observed that the vaginal epithelia only shows RBC and bacteria was seen. In that eventuality, no specific opinion could be said to have been made out prima facie under section 376 (2) (n) of IPC, this observation is only tentative in nature for the purposes of the consideration of the bail application.

Owing to the aforesaid, the appellant is directed to be released on bail, subject to the furnishing of his personal bond and the two sureties of the like amount to the satisfaction of the Magistrate concerned.

However, the release of the appellant/applicant would be subject to the condition of depositing of Rs.25,000/- of the amount, out of the total penalty, as imposed by the impugned judgment 06.08.2022 The Registry is directed to preparer the paper book, and supply the same to the respective counsels on the payment of usual charges.

However, it is also made clear that the sentence imposed by the learned court below shall remain suspended.

(Sharad Kumar Sharma, J.) 16.11.2022

NR/