CRLA/550/2022
2023 Latest Caselaw 1642 UK

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      Date                                         COURT'S OR JUDGES'S ORDERS
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                                 Bail Application (IA No. 2022)
                                 In
                                 CRLA No. 550 of 2022
                                 Hon'ble Manoj Kumar Tiwari, J.

Hon'ble Pankaj Purohit, J.

Mr. Shashi Kant Shandilya, Advocate for the appellant/applicant.

(2) Mr. J.S. Virk, Deputy Advocate General with Mr. Rakesh Kumar Joshi, Brief Holder for the State of Uttarakhand.

(3) This is an appeal filed under Section 374(2) of Cr.P.C., against the judgment and order dated 15/16.12.2022 rendered by learned F.T.S.C./Additional Sessions Judge, Roorkee, District Haridwar in Special Sessions Trial No. 12 of 2021, "State v. Rekha Devi @ Muskan and others". By the said judgment, the appellant was convicted for offence punishable under Section 376(3) IPC with the help of POCSO Act and was sentenced to rigorous imprisonment of 20 years with fine of Rs. 60,000/-. It was further directed that the period previously spent by accused/appellant in jail will be adjusted in the above sentence, and in case of default in payment of fine, accused/appellant shall undergo six months additional imprisonment.

(4) As per the case of the prosecution, the victim went missing on 09.11.2020 and the missing report was lodged by her mother, namely, Sunita, on 13.11.2020. Upon investigation, victim was recovered from the company of co-accused Rekha Devi on 16.11.2020 from Roorkee.

(5) It is the submission of learned counsel for the appellant/applicant that prosecutrix did not support the case of the prosecution while deposing before the Court during Trial, where she specifically stated that she did not know and recognise the appellant/applicant Tarun Kukreja. Apart from this, the victim also did not support the statement given under Section 164 of the CrPC.

(6) Per contra, learned State Counsel admitted that though the prosecutrix has turned hostile and deposed before the Court concerned that she did not recognise the applicant/accused but, there are other evidences on record, which are sufficient to bring home the charges against the applicant/accused. The presumption under Section 29 of the POCSO Act is also there against the appellant/applicant

(7) So far as the presumption of POCSO Act is concerned, at this stage we feel that presumption will not operate for the reason that victim herself fail to recognise the appellant/applicant, during the course of trial before the Court.

(8) Considering the totality of the facts and circumstances of the case, material available on record and without expressing any opinion about the merits of the case, at this stage, we feel it expedient to release the appellant/applicant on bail. Accordingly, bail application (IA No. 1 of 2022) is allowed.

(9) Let the appellant/applicant-Tarun Kukreja be released on bail during the pendency of this appeal on his executing a personal bond and furnishing two reliable sureties, each of like amount, to the satisfaction of the Court concerned.

10. List this Appeal on 24.08.2023.

(Pankaj Purohit, J.) (Manoj Kumar Tiwari, J.) 13.06.2023 Navin