Uttarakhand High Court
CRLA/369/2022 on 22 March, 2023
Office Notes,
reports, orders or
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Date COURT'S OR JUDGES'S ORDERS
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Registrar's order
with Signatures
CRLA No. 369 of 2022
With
IA No. 3 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Vinoda Nand Barthwal, Advocate, for
the appellant/applicant.
Mr. T.C. Agarwal, Deputy A.G., with Mr.
Sachin Panwar, Brief Holder, for the State of
Uttarakhand.
The Criminal Appeal arises out of the
judgment of conviction, as it has been rendered by
the District and Sessions Judge, Tehri Gahrwal, in
Sessions Trial No.8 of 2019, State Vs. Himanshu @
Hemant, wherein, the present appellant has been
sentenced to undergo ten years' of rigorous
imprisonment and a fine of Rs.5,000/- has been
imposed for his alleged involvement in the
commission of offence under Section 376 (2) (n) of
the IPC, and in an event of failure to deposit the
penalty amount, he was directed to undergo further
two months' simple imprisonment.
The Criminal Appeal has been admitted.
LCR has been summoned.
Learned counsel for the appellant/applicant
presses the Bail Application on the following
grounds :-
i. That the entire prosecution story is false,
because in fact, it was a case of
consensual relationship, and hence, it
cannot be said that it was an offence under
Section 376 of the IPC.
ii. He submits, though beyond the theory as
narrated in the FIR, that the offence is
said to have been committed under an
intoxicated stage under an influence of
alcohol.
iii. That owing to the fact, that no
spermatozoa was found, it cannot be said
that it was a case under Section 376 of the
IPC.
iv. He further argues, that since the
prosecution case is, that ultimately a
mobile of the victim /complainant was
found in possession of the present
applicant, at the most, it could be an
offence under Sections 379 and 411 of the
IPC.
v. Lastly, he argues that since out of the total
sentence of ten years, he has already
served four years of sentence, he is
entitled to be released on bail.
vi. Apart from it, he has also argued, that
there was a delayed FIR submitted by the
complainant.
So far as the first argument of the learned
counsel for the applicant/appellant, pertaining to the
story being false and cooked up, is not believable,
for the reason being, that the chorology of events,
which had chanced after the victim landed in India
from Nairobi and having met the present applicant
at Rishikesh, and thereafter, the following events,
which had been dealt with by the Trial Court after
appreciation of evidence, it cannot be simplicitor
said that it is a false incident, which has been
narrated in the FIR or which has ultimately
established on the culmination of trial. However,
the falsity of the allegation levelled in the FIR and
the observations made in the judgment of
conviction would be a scope left open to be argued
at the stage, when the Appeal itself is argued
finally.
The second argument, that the incident has
chanced owing to intoxication, as both, the present
applicant/appellant and the victim, were under an
intoxicated stage and under an influence of liquor.
The said story, in fact, is not a story of the
prosecution or even of defence, and rather it has
been only extracted to be argued on the basis of the
appreciation of the statement recorded by Dr. Tulsi
Bisht. Whether the act has chanced under an
influence of intoxication, is yet again would be an
issue beyond the prosecution case, as according to
the medical report submitted by way of Ex.Ka-7, it
was found that there was a positive indication of
BDRL and hepatitis-B. The HIV test and
pregnancy test were found to be negative.
Whether the act has been committed, in an
intoxicated stage is yet again not believable because
of the CCTV footage, which was placed before the
Trial Court at the time when the trial was being
conducted with regard to the offence, in question.
The allegation that since the mobile of the
victim was found in possession of the present
applicant, and at the most, it could be an offence
under Sections 379 and 411 of the IPC, is yet again
a story, which has been developed as an
afterthought, for the purpose of pressing the Bail
Application, because even otherwise also, merely
because of the possession of the mobile with the
present applicant, the commission of offence under
Section 367 (2) (n) of the IPC, cannot be ruled out
because it is altogether an independent offence,
which is heinous in nature.
Lastly, the argument of the learned counsel
for the applicant/appellant, that the applicant had
already served a sentence of more than four years
and, hence, he is entitled to be released on bail.
This Court is of the view, that merely because of
serving of sentence for a major period of a
conviction may not in itself be a reason to consider
the Bail Application and to grant the same. It is
always the circumstances under which the offence
has been committed, which has to be considered in
its totality, for the purposes of considering the Bail
Application.
On an overall scrutinization of the
observations made and findings recorded by the
Sessions Court and on an appreciation of evidence,
with regard to the establishment of the commission
of offence under Sections 367 (2) (n) of the IPC,
this Court is not inclined to release the
applicant/appellant on bail.
Hence, the Bail Application is accordingly
rejected.
(Sharad Kumar Sharma, J.)
Dated 22.03.2023
Shiv
