Bhupendra Chand vs State Of Uttarakhand

Alok Kumar Verma, J

This First Bail Application has been filed for grant of regular bail in connection with the F.I.R. No.389 of 2019, registered with Police Station

Haldwani, District Nainital for the offences punishable under Sections 376(2)(f), 506 of the Indian Penal Code, 1860 and Section 5(n)/6 of the

Protection of Children from Sexual Offences Act, 2012.

Facts, to the limited extent necessary, are that an F.I.R. was lodged by the mother of the victim on 06.10.2019 with the allegations that her husband

(present applicant/accused) was working in D.S.C. He came to his house on leave. She has two daughters. Her elder daughter is 13 years old and

younger daughter is two years old. She had been married with the applicant for 17 years. Her husband's behaviour was not good from the beginning,

but she kept quiet. He would always call other women. He used to seduce her daughter for three years. When her daughter complained her, he used

to say that she did not go to the police. She kept quiet for fear of slander. He used to tease her daughter's private parts. He committed sexual assault

on her daughter. After investigation, charge-sheet has been filed against the applicant.

Heard learned counsel for the applicant and learned counsel for the State.

The learned counsel for the applicant submits that the applicant is innocent person; he has been falsely implicated by his wife due to dowry dispute;

the applicant is working in Army and before arresting him, the permission of the Commanding Officer of the applicant was mandatory; all the

allegations are false; the prosecution case is not supported by the medical; according to the medical report of the victim, the hymen was not present;

the applicant has no criminal history; he is in judicial custody since 06.10.2019.

The learned counsel for the State of Uttarakhand opposed the bail application and submits that during the course of the investigation, the statements

of the mother of the victim and victim were recorded under Section 161 and Section 164 of the Cr.P.C. and they were examined as PW1 and PW2 in

trial; in the statements under Section 161 and 164 of the Cr.P.C. victim and her mother supported the prosecution story; the victim is aged about 13

years, daughter of the applicant and there is no reason to adduce false evidence by her against her father. The prosecution case is supported by the

medical, where it is clearly mentioned that the hymen of the victim was absent.

In the case of State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, the Hon'ble Apex Court has held that it is well settled that the matters to be

considered in an application for bail, are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the

offence, (ii) nature and gravity of charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if

released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable

apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail.

Therefore, while dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie considering why bail is being

granted particularly where an accused is charged of having committed a serious offence. Any order dehors reasons suffers from non-application of

mind as observed by the Hon'ble Apex Court in Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002)3 SCC 598.

Therefore, it is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgment of Hon'ble

Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another, 2018(1) CCSC 117 is that in serious crimes, the mere fact that the

accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

According to the prosecution's case, the applicant, father of the victim, committed aggravated penetrative sexual assault on the victim repeatedly.

The case of the prosecution is supported by the victim in her statements under Sections 161 and 164 of the Cr.P.C. and in the trial as PW2.

According to the statements of the victim, recorded under Sections 161 and 164 of the Cr.P.C., her date of birth is 01.03.2007. She used to study

in Class VIII. She did not like her father at all. Her father was in the Army earlier, now he is retired and works in D.S.C. Whenever he came home,

she used to sleep in a separate room with the door closed. Her father came on leave and 5-6 days before her father came to her room at around 10:00

hour in night. He kissed her and put his finger and his private part in her private part. It had been going on for three years. Earlier, she screamed 6-7

times.

He used to threaten her that if she told her mother anything, he would kill her. Her mother was silent due to threats and slander. Her mother had also

witnessed this incident that day. In trial, the victim and her mother supported the prosecution case.

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. Aggravated penetrative sexual assault by father is most heinous offence causing enormous emotional and physical harm that can lost

throughout child victim's lifetime.

From the perusal of the evidences, collected during investigation, and the statement of the victim recorded under Sections 161 and 164 of the Code

of Criminal Procedure, 1973, it prima facie appears that the applicant was involved in this crime. No reason is found to falsely implicate the applicant.

Therefore, without commenting on the merits of the case, there is no ground to release the accused-applicant involved in this heinous crime on bail.

The bail application is rejected accordingly.

It is clarified that the observations made regarding the bail application is limited to the decision, in the light of the facts, provided by the parties at

this stage, as to whether the bail application should be allowed or not and the said observations shall not effect the trial of the case.