Aakash Kumar vs State Of Uttarakhand

Alok Kumar Verma, J

Present Application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with the Case Crime No.0314 of 2022, registered at Police Station Kotdwar, District Pauri Garhwal.

Applicant is in judicial custody under Section 376 of the Indian Penal Code, 1860 and Section 5 read with Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The First Bail Application (No.607 of 2023) was dismissed as withdrawn on 27.07.2023.

The informant lodged an FIR on 06.12.2022 that on 05.12.2022, her daughter (victim), aged about fifteen years, had stomach ache. She was taken to the Government hospital. She gave birth to a child in the hospital. She told during the interrogation that her uncle Aakash (present applicant) had had physical relations with her.

During the investigation, statements of witnesses were recorded by the Investigating Officer. Statement of the victim under Section 164 of the Code of Criminal Procedure, 1973 was recorded. The Investigating Officer obtained the DNA report and after concluding the investigation, a charge-sheet was filed by him against the applicant.

Heard Mr. Vikas Singh Yadav with Mr. Karan Singh Dugtal, learned counsel for applicant and Mr. V.K. Gemini, learned Deputy Advocate General for State.

Mr. Vikas Singh Yadav, Advocate, contended that the FIR does not mention any date or place of the alleged incident. Applicant is a married person. False and baseless allegations have been made against the applicant. The evidence of the alleged vicitm’s father (PW1), her mother (PW2) and the alleged victim (PW3) has been completed. These witnesses have not supported the prosecution case. These witnesses have been declared hostile by the prosecution. The bail application cannot be rejected only on the basis of DNA report when ocular evidence does not support the case of the prosecution and “bail is the rule and jail is an exception”.

Mr. V.K. Gemini, learned Deputy Advocate General, has opposed the bail application. He contended that the victim (PW3) has supported her statement given under Section 164 of the Code of Criminal Procedure, 1973, and, the DNA report also supports the prosecution case.

The victim (PW3), whose date of birth is 10.12.2009, stated that her statement given under Section 164 of the Code of Criminal Procedure, 1973 is true that the accused had established physical relations with her several times by threatening her, which resulted in the birth of a child. At the time of evidence of the victim (PW3), her demeanor was recorded by the trial court that she was scared at the time of her evidence. According to the DNA report, applicant, the real uncle of the victim, is the biological father of the child born to the victim.

It is well settled principle that each criminal case presents its own peculiar factual scenario. Therefore, a bail application cannot be allowed solely or exclusively on the ground that the fundamental principle of criminal jurisprudence is that “Bail is the rule and committal to jail is an exception”.

The Protection of Children from Sexual Offences Act, 2012 has been enacted to strengthen the legal provisions for the protection of children from sexual abuses and exploitations. Child abuse has serious physical and psycho-social consequences which adversely affect the health and overall well-being of a child.

In view of the facts and circumstances of the case, no good ground is found for releasing the applicant on bail at this stage.

For the reasons afore-stated, and without expressing any views on merits of the case, I reject the bail application of the applicant.

It is made clear that the observations made by this Court are only for the disposal of the bail application and shall not affect the trial of the case.