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Uttarakhand High Court
Bablu Sarkar And Another ... vs State Of Uttarakhand on 3 December, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Bail Application No. 8934 of 2024
In
Criminal Appeal No.204 of 2016
Bablu Sarkar and another ......Appellants
Versus
State of Uttarakhand ....Respondent
Present:
Mr. Vikas Anand, Advocate for the appellants.
Ms. Manisha Rana Singh, D.A.G. for the State.
Mr. Vikas Kumar Guglani, Advocate for the informant.
Coram: Hon'ble Ravindra Maithani, J.
Hon'ble Alok Mahra, J.
Hon'ble Ravindra Maithani, J.(Oral)
Instant appeal is preferred against the judgment and order
dated 10.05.2016, passed in Special Sessions Trial No. 149 of 2014,
State Vs. Bablu Sarkar and others, by the court of FTC/Additional
Sessions Judge/Special Judge POCSO, Rudrapur, Udham Singh
Nagar. By it, the appellant no.1 Bablu Sarkar has been convicted and
sentenced under Sections 376 (2) and 302 IPC and appellant No.2
Minti Sarkar was convicted and sentenced under Section 302 IPC.
2. This is an admitted appeal. Appellant no. 2 Minti Sarkar
has already been granted bail by the order dated 21.05.2025.
3. Present bail application has been filed by the appellant
no.1 Bablu Sarkar seeking bail during the pendency of this appeal.
4. Heard learned counsel for the parties and perused the
record.
5. According to the prosecution case, in the intervening night
of 06/07.06.2014, the appellant no.1 raped the deceased. He was
arrested at the spot. But, when the father of the deceased wanted to
lodge the report, he was pressurised not to lodge the FIR.
Subsequently, the appellant no.1 and deceased were married under the
conspiracy by the appellant no.1 and his family members. Thereafter,
on 09.09.2014, according to the FIR, the appellant no.1 and his family
members poured kerosene on the deceased and set her ablaze. The
deceased died in the hospital on 28.09.2014.
6. Learned counsel for the appellants submits that the
appellant no.1 is in custody for more than 11 years. The deceased was
admitted in the Shushila Tiwari Hospital, Haldwani on 09.09.2014. On
the same day, the Hospital authorities informed the police that the
statement of the deceased may be recorded. Thereafter, on 12.09.2014,
the deceased was referred to Lok Nayak Hospital, New Delhi, where her
dying declaration was recorded on 19.09.2014, wherein she implicated
the appellant no.1 as a person, who set her ablaze. Learned counsel
submits that, initially, when the deceased was taken to hospital in
Haldwani, in the hospital record the alleged history is recorded as
flame burn during working at home on 09.09.2024. He submits that
during the period of custody, the appellant no.1 sought information
under the Right to Information Act, 2005 and he came to know that, in
fact, a dying declaration of the deceased was also recorded in Haldwani
on 12.09.2014. It is thereafter, the appellant no. 1 moved an
application under Section 391 of the Code of Criminal Procedure, 1973
("the Code").
7. Fact remains that, subsequently it was revealed that, in
fact, a dying declaration of the deceased was recorded by Naib
Tehsildar, Haldwani on 12.09.2014, in which the deceased has
allegedly not implicated the appellant no.1 The court on 17.09.2025,
allowed the application under Section 391 of the Code of the appellant
no.1 and required that the dying declaration recorded on 12.09.2014 in
the Sushila Tiwari Hospital, Haldwani may be proved by the parties
and the parties shall adduce evidence accordingly. It is argued that,
initially, when the deceased was taken to the Hospital in Haldwani, the
record reveals that it was an accidental fire. On 12.09.2014, the
deceased Malina Sarkar gave her statement that she did not implicate
the appellant no.1 and it is only on 19.09.2014, when she implicated
the appellant no.1 in her dying declaration.
8. In view of two dying declarations, the period of custody
and other attending factors, it is argued that it is a case fit for bail.
9. Learned State counsel admits that there are two dying
declarations on record, one which was recorded on 12.09.2014, in
which the deceased Malina Sarkar did not implicate anyone; but
subsequently, in her dying declaration recorded on 19.09.2014, she
implicated the appellant no. 1 and others. She also fairly concedes
that, in first medical record at Sushila Tiwari Hospital, Haldwani, the
history is recorded as if it was an accidental fire.
10. Learned counsel for the informant submits that in answer
to question no. 35, recorded under Section 313 of the Code, the
appellant no. 1 had admitted that on 19.09.2014, the statement of the
deceased was recorded at Lok Nayak Hospital, New Delhi and in
forensic report kerosene residues were found on the person of the
deceased.
11. It is a stage of bail post conviction. The appellant no.1 does
not have a privilege of presumption of innocence as he is a convict.
Whatever discussion is made at this stage shall confine to the disposal
of the bail application, which shall have no bearing on the subsequent
proceedings of the case.
12. First and foremost, it may be made clear that though in
answer to question no. 35, the appellant no.1 had admitted that on
19.09.2014, statement of the deceased was recorded at 6:15 at Lok
Nayak Hospital, New Delhi. But, in answer to question no. 36, he has
said that the statement that was given by the deceased on that day was
false.
13. Admittedly, when the deceased was taken to the Hospital
on 09.09.2014 at Haldwani, in the alleged history it was recorded that
she got burnt while working at home and it was not then recorded that
she was set ablazed by anyone.
14. The first dying declaration of the deceased was recorded on
12.09.2014. Admittedly, she did not implicate anyone though this
statement has yet to be proved by the prosecution. The Court has
already directed the parties to adduce evidence on this. But, this is a
fact that there is such statement. It is also admitted that subsequently,
in her statement recorded on 19.09.2014, the deceased changed the
dying declaration and implicated the appellant no.1.
15. In view of two dying declarations, period of incarceration
and other attending facts, we are of the view that it is a case in which
the execution of sentence should be suspended and the appellant no.1
be enlarged on bail.
16. The bail application is allowed.
17. The execution of sentence appealed against is suspended
during the pendency of the appeal.
18. The appellant no.1 Bablu Sarkar be released on bail,
during the pendency of the appeal, on his executing a personal bond
and furnishing two reliable sureties, each of the like amount, to the
satisfaction of the court concerned.
19. List the appeal for hearing in due course.
(Alok Mahra, J.) (Ravindra Maithani, J.)
03.12.2025
Jitendra
