Uttarakhand High Court
CRLA/498/2022 on 13 September, 2023
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IA No. 2 of 2022
In
CRLA No. 498 of 2022
Hon'ble Sharad Kumar Sharma, J.
Mr. Amit Kapri, Advocate, for the appellant.
Mr. V.K. Gemini, Deputy A.G., for the State
of Uttarakhand.
The appellant is a convict for commission of
offence under Sections 363, 366A of the IPC and
Section 5/6 of the POCSO Act.
As a consequence of the judgment of
conviction under challenge in Appeal, the appellant
has been directed to undergo rigorous imprisonment
for a period of 10 years under Section 5/6 of the
POCSO Act, for the offence under Section 363 of
the IPC, he has been directed to undergo rigorous
imprisonment for a period of three years, and for
the offence under Section 366A of the IPC, he has
been directed to undergo rigorous imprisonment of
three years.
The appellant was on bail during the course
of trial. It has been argued by the learned counsel
for the appellant, that in fact, it is a case of
consensual relationship, because they have travelled
around together to different places, where they have
admittedly established physical relationship. He
further submits, that according to the doctor' report,
who has recorded her statement as PW7, she has
stated that the victim was of 17 years of age, and on
the basis of that determination, it is presumed that
she would be of 16-1/2 years of age on the date,
when the offence was committed, she moved
around with the appellant to different places and
established the relationship. She did not ever raise
any objection, at all, when the relationship was
established against her wishes.
The learned Government Advocate opposes
the bail application on the ground, that since it
engages consideration of the offence under Section
5/6 of the POCSO Act, the Court may not consider
the Bail Application, because it is the offence
committed against the minor.
As far as offences relating to the minor are
concerned, no doubt about that, it has to be
stringently gone into by the Court while considering
the Bail Application. But then too, this Court
cannot be oblivious of the fact, that the medical
report and the statement of the victim don't support
the prosecution case, because the victim has moved
around with the appellant willingly, and the age of
the victim was marginally minor to the prescribed
statutory age of majority.
Since the victim moved around different
places voluntarily and this fact is fortified by her
statement recorded under Section 164 of the
Cr.P.C., as such, this Court is inclined to release the
applicant on bail.
Accordingly, the Bail Application is allowed.
The applicant / appellant is directed to be released
on bail subject to furnishing of his personal bond
and two sureties each of the like amount to the
satisfaction of the Court concerned.
(Sharad Kumar Sharma, J.)
Dated 13.09.2023
Shiv
