Virendra Singh vs State

Heard Mr. Sumit Singhal, learned counsel for the petitioner through Whats App. call as well as learned Public Prosecutor and perused the material available on record.

The petitioner has been arrested in connection with FIR No.421/2019 of Police Station, Nathwara, District Rajsamand for the offence punishable under Sections 376(3), 376(2)(n) I.P.C. and Section 5/6 of POCSO Act, 2012.

This second bail application has been preferred on behalf of the petitioner being aggrieved with the order passed by learned trial court on 23.3.2020 whereby his third bail application, before the trial court, under Section 439 Cr.P.C. has been dismissed.

It is noticed that this Court on 12.12.2019 dismissed the first bail application of the petitioner as not pressed while granting him liberty to file fresh bail application before the trial court after recording of statements of minor daughter of the complainant.

Learned counsel for the petitioner has argued that minor daughter of the complainant is not appearing before the trial court for giving her evidence though the trial court summoned her on several occasions.

Learned counsel for the petitioner has also submitted that the minor daughter of the complainant is missing and her whereabouts are not known and there are all possibilities that she is deliberately not appearing before the trial court for giving her evidence, therefore, the petitioner may be enlarged on bail without waiting for recording of evidence of minor daughter of the complainant. Learned counsel for the petitioner has further submitted that father of the prosecutrix Ratan Singh (PW-3) in his court statements has specifically stated that the petitioner has not committed sexual assault upon his minor daughter and the allegations levelled against him are false. Learned counsel for the petitioner has also invited my attention towards the statements of Puran Singh (PW-4), who happened to be brother of the prosecutrix, and submitted that this witness has also specifically stated that the allegations levelled against the petitioner regarding sexual assault upon his minor sister are absolutely false. It is submitted that PW-3 and PW-4 in their statements have specifically stated that false allegations have been levelled at the instance of the complainant, who is living separately from her husband (PW-3) and she instigated his minor daughter to level false allegations against the petitioner.

Learned counsel for the petitioner has submitted that the petitioner is in custody from last more than 9 months and trial against him is not likely to complete in near future, therefore, he is entitled to be enlarged on bail. Learned counsel for the petitioner has also submitted that the Hon'ble Supreme Court as well as various High Courts have specifically held that the bail is rule whereas jail is an exception.

Learned counsel for the petitioner has also submitted that the petitioner is 21 years' young boy and in view of the fact that no substantial evidence is available on record against him till date, he is entitled to be enlarged on bail.

Per contra, learned Public Prosecutor has vehemently opposed the bail application and submitted that once this Court has granted liberty to the petitioner to file fresh bail application after recording of statements of minor daughter of the complainant, this second bail application of the petitioner in absence of statements of minor daughter of the complainant is not maintainable.

Learned Public Prosecutor has further submitted that serious allegations of sexual assault upon a minor girl have been levelled against the petitioner and charges have been framed against him under the POCSO Act and taking into consideration the above facts and circumstances of the case, the petitioner is not entitled to be enlarged on bail.

Learned Public Prosecutor has further submitted that so far as the statements of PW-3 and PW-4 are concerned, they are not significant and are of no help to the petitioner because during the course of police investigation also, the said witnesses did not confirm the allegations of sexual assault against the minor girl.

Learned Public Prosecutor has invited my attention towards the statements of PW-6 Om Prakash who happened to be Head Master of the school, where the minor girl studied and has submitted that as per her school record, the date of birth of the minor daughter of the complainant is 25.4.2004 and as such on the day of alleged incident, the minor daughter of the complainant was less than 16 years old and looking to all these circumstances, the petitioner is not entitled to be enlarged on bail.

Heard learned counsel for the parties and perused the material available on record.

Admittedly, the statements of minor daughter of the complainant have not been recorded before the trial court and even the statements of the complainant have also not been recorded.

It is noticed that allegations levelled against the petitioner is to the effect that he had committed sexual assault upon minor girl. So far as the statements of prosecution witnesses recorded before the trial court up to this date are concerned, this Court is of the opinion that the said statements are not of much help to the petitioner because allegations of sexual assault have been specifically levelled by the complainant and her minor daughter during the course of police investigation.

Having regard to the totality of the facts and circumstances of the case and looking to the nature of accusation and gravity of the offence, without expressing any opinion on the merits of the case, I am not inclined to grant bail under Section 439 Cr.P.C. to the petitioner.

Accordingly, the application preferred by the petitioner under Section 439 Cr.P.C. is rejected.