CRLA/362/2020
2022 Latest Caselaw 3173 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

                  SHRI JUSTICE S.K. MISHRA, J.

AND SHRI JUSTICE ALOK KUMAR VERMA, J.

27th SEPTEMBER, 2022

CRIMINAL APPEAL NO. 362 of 2020

Between:

Mohammad Rihan                                        .....Appellant

and


State of Uttarakhand                                 .....Respondent



Counsel       for       the :     Mr. R.S. Sammal and Ms. Sarita Bisht,
appellant.                       learned counsel for the appellant.


Counsel for the State      :     Mr. J.S. Virk, learned Deputy Advocate

General assisted by Mr. Rohit Dhyani, learned Brief Holder.

Upon hearing the learned Counsel, the Court made the following

Judgment: (per Shri S.K. Mishra, J.)

This is an application filed by the appellant,

namely, Mohammad Rihan, 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 to the appellant upon appeal. As per the judgment

dated 29.10.2020, passed by the learned Sessions

Judge/Special Sessions Judge (POCSO), Nainital, District

Nainital in Sessions Trial No.47 of 2017, the appellant has

been convicted for the offence under Section 3/4 of the

Protection of Children from Sexual Offences Act, 2012, and

sentenced to undergo rigorous imprisonment and to pay a

fine of `50,000/-, and, in default of payment of fine,

further to undergo additional simple imprisonment for two

months.

2. The learned counsel for the appellant would

submit that the prosecutrix has not supported the case of

the prosecution, in the sense, that she has resiled from

her statement, recorded under Sections 161 and 164 of

the Code during the course of the investigation, which we,

after considering the materials available on record, found

to be incorrect and erroneous. The prosecutrix has not

only supported the case of the prosecution, but the School

Leaving Certificate reveals that she was a minor at the

time of the occurrence. Moreover, the report of the SFSL

reveals that the DNA stains found on the condom seized

from the spot bore the semen stains of the appellant.

Moreover, the DNA obtained from Exhibit-19, i.e. the pubic

hair of the accused, is matching with the DNA of the

Exhibit-12 and Exhibit-13, blood sample of the victim and

blood sample of the accused. Moreover, though much

emphasis has been laid on the fact that the appellant was

not put to TI parade and one photograph was shown to

the victim, on the basis of which the victim identified the

appellant in the Court.

3. This Court is not inclined to give much

importance to such aspect of the case, as it is a settled

principle of criminal jurisprudence that a victim of sexual

assault can never forget the face of the man, who ravished

her. Hence, this Court is of the opinion that, prima facie,

the identification of the appellant in the Court, suffers from

no infirmity and on that ground, sentence cannot be

suspended. Accordingly, the application for suspension of

sentence and grant of bail upon appeal is hereby rejected.

4. Since, the appellants are in custody, and, the

appeal relates to the year 2020, we direct that the matter

be listed on 10.01.2023 for final disposal.

5. In the meantime, paper book be prepared.

________________ S.K. MISHRA, J.

___________________ ALOK KUMAR VERMA, J.

Dt: 27th September, 2022 Neha/SB