Uttarakhand High Court
CRJA/55/2022 on 16 August, 2023
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reports, orders
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Date COURT'S OR JUDGES'S ORDERS
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Registrar's order
with Signatures
Bail Application (IA No.1 of 2022)
In
CRJA No. 55 of 2022
Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Mr. Akshay Latwal, Advocate for the
appellant/applicant.
(2) Mr. J.S. Virk, Deputy Advocate General for
the State of Uttarakhand.
(3) Heard learned counsel for the parties on
the bail application.
(4) This is an appeal filed under Section 374
read with Section 383 CrPC against the
judgment and order dated 28.05.2022 passed
by learned Special Sessions Judge, POCSO,
District Pauri Garhwal in Special Sessions Trial
No. 04 of 2019, 'State of Uttarakhand v. Manoj'
whereby appellant has been convicted under
Section 5(m)/6 of Protection of Children from
Sexual Offences Act, 2012 read with Section
376 AB IPC and sentenced to rigorous
imprisonment of 20 years with fine of
` 50,000/- and, in default of payment of fine,
he was sentenced to undergo two years
additional rigorous imprisonment.
(5) The victim in the case is niece of the
appellant. The zero First Information Report
was lodged on 11.12.2018 in Police Station
Mandir Marg, New Delhi, when the victim was
taken to treatment by her maternal aunt (Bua),
on the complaint of stomach-ache, and it was
found in ultrasound report that victim was
pregnant. When asked by her maternal aunt
(Bua), namely, Shanti, she named the
appellant- Manoj, who, according to her,
sexually assaulted her some time six month
back while she was watching television in his
house. On the basis of the aforesaid, First
Information Report was registered against the
appellant under Section 376 IPC and Section 6
of Protection of Children from Sexual Offences
Act, 2012 on 10.12.2018 in Police Station
Dhumakot, District Pauri Garhwal, where earlier
zero FIR was sent by Delhi Police.
(6) During investigation, the DNA of the new
born baby was not matched up with the DNA of
the appellant Manoj, but, in the report, it has
been mentioned that the new born baby of the
victim are from the same paternal lineage.
After this report, Investigating Officer
requested learned District & Sessions Judge,
Pauri Garhwal to take the sample of nine other
family members relating to paternal lineage of
Manoj. Thereafter, DNA samples of nine other
family members were sent to Forensic Science
Laboratory, Uttarakhand and DNA of the new
born baby was matched up with the co-
accused, namely, Bharat Singh @ Bharat.
(7) After submission of this report, statement
of victim under Section 164 CrPC was taken, in
which she has categorically stated that, prior to
Manoj sexually assaulted her, the co-accused
Bharat Singh @ Bharat has also sexually
abused her. Thus, the prosecution version has
been consistent throughout the trial and even
in the examination as prosecution witness
before trial Court.
(8) Learned counsel for the appellant argued
that in the DNA report, co-accused Bharat
Singh @ Bharat is mentioned as biological
father of new born baby. As per DNA report,
his DNA was not found matching with
appellant. He further submitted that there are
many flaws in the prosecution case, and
therefore, at this stage, the same cannot be
believed and the appellant be released on bail.
(9) Per contra, learned Deputy Advocate
General for the State submitted that it is a case
where the victim was ravished in the house of
her relatives by her family members. Moreover,
when the victim is 11 years 9 months old, as
per prosecution case, the minor contradiction in
her evidence cannot be said to be fatal to the
prosecution. It is further submitted that the
prosecution proved its case beyond all
reasonable doubt and the prosecution version
has consistently been supported by victim.
(10) Having considered the submissions of
learned counsel for the parties, without
expressing any opinion about the merits of the
case, we do not think it a fit case where the
appellant is entitled for bail, at this stage.
(11) Bail Application is, accordingly, rejected.
(12) The appeal is directed to be listed for final
hearing on 14.12.2023.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.)
16.08.2023
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