IMPORTANT POINT
Bail – Absence of evidence indicating penetrative sexual assault, can be a ground for grant of bail.

ORDER

G. Narendar, CJ.—Heard Mr. Priyanshu Gairola, learned counsel for the appellant/ applicant in CRLA No. 100/2024, Ms. Manisha Bhandari, petitioner, party-in-person in WPPIL No. 114/2024, Mr. J.S. Virk, learned DAG for the State and Mr. Siddhartha Bankoti & Ms. Divya Jain, learned counsels for the victim.

2. The matter was heard yesterday and the victim was present and fervently pleaded to the Court to positively consider the bail application of the appellant/ applicant. On interaction with the victim, it has come out that the victim is presently working in Dehradun and living alone to financially support herself, and also finance the legal battle on behalf of her husband, who is undergoing incarceration. The victim claims that she is working as a housemaid and earning Rs.12000/-. She claims that she, and the appellant/ applicant are natives of a far off Village Jakhol in District Uttarkashi. That the trauma she is undergoing, is on account of the application of the law, and she is reduced to a hapless position, on account of the judgment of conviction and sentencing of her husband by the Trial Court.

3. It is the case of the complainant, i.e. the victim’s father, that on 01.01.2022, the victim had left the house at 10:00 P.M., stating that she would be going to her grandfather’s house and sleep there, but it came to be known in the morning that she never reached her grandfather’s house, and that people submitted that the accused had come to the village with his car, and on that basis it was suspected that the victim had absconded with the appellant/ applicant. The jurisdictional police registered Crime No. 01/2022 and commenced investigation, and the victim was found in the company of the accused, near Arakot Bazar Bridge, and the appellant/ applicant was arrested on 23.01.2022; that the victim was medically examined by the Investigating Officer. The victim’s date of birth was affirmed on the basis of birth certificate obtained from the school, and the charge-sheet came to be filed into the Court on 25.02.2022, charging the appellant/ applicant for offences punishable under Sections 363 & 376(2)(n) of the IPC, and Section 5(l) of the POCSO Act.

4. This is not a case of insufficient evidence, but a case of no evidence at all. The dates recorded above would show that the victim was missing between 10.01.2022 and 23.01.2022, and the victim was found in the company of the appellant/ applicant and detained near Arakot Bazar Bridge. A reading of the impugned judgment does not record any proof, having been let in, demonstrating place of residence, be it in the form of a 3 residential house, or a hotel accommodation. In short, prima facie, there appears to be no evidence, as to where the crime was committed. In fact, in paragraph no. 24, the Trial Court, on appreciating the evidence of PW-4, has recorded that PW-4 victim has submitted that she did not meet the appellant/ applicant in the village on 10.01.2022. The Trial Court, in paragraph no. 23, has recorded as under:—

“23. After hearing the arguments of the learned advocates of both the parties and taking into due consideration the material available on record, it was found that the focus of the special session trial at hand is the evidence of the victim only. Because the victim has the sole knowledge of the fact of the victim going with the accused or the victim being taken by the accused. Due to which the victim can only tell under what circumstances, how and why the victim went with the accused or under what circumstances, how the accused took her with him and where he kept her during the period from 01.01.2022 to 23.01.2022 and where he committed aggravated penetrative sexual assault/rape with her? Therefore, in the case at hand, the evidence of the victim is being considered first.”

5. The fact remains that the victim turned hostile and denied any wrongdoing on the part of the appellant/ applicant. The Trial Court, in paragraph no. 27, has placed reliance upon the victi