Uttarakhand High CourtCRLA/169/2022 on 19 July, 2022Author:S.K. MishraBench:S.K. MishraIN THE HIGH COURT OF UTTARAKHAND\n                 AT NAINITAL\n\n                  SHRI JUSTICE S.K. MISHRA, J.\n                              AND\n               SHRI JUSTICE ALOK KUMAR VERMA, J.\n\n                          19th JULY, 2022\n\n         CRIMINAL APPEAL NO. 169 of 2022\n\nBetween:\n\nDeependra Kumar                                         ...Appellant\n\nand\n\n\nState of Uttarakhand                                  ...Respondent\n\n\nCounsel       for       the :    Ms. Pratiksha Tripathi, learned\nappellant.                       Counsel.\n\n\nCounsel for the State     :    Mr. J.S. Virk, learned Deputy Advocate\n                              General.\n\n\n\n\nUpon hearing the learned Counsel, the Court made\nthe following\n\nORDER:(per Shri S.K. Mishra, J.)\n\n\n             Heard on the Bail Application (IA No. 01 of\n\n2022).2.           This is an application underSection 389of the\n\nCode of Criminal Procedure, 1973, (hereinafter referred as\n\n"the Code" for brevity), for suspension of sentence and\n\ngrant of bail to the appellant upon appeal. The appellant\n\nhas been convicted by the learned Additional District and\n\nSessions Judge/Fast Track Special Court, Dehradun in2Special Sessions Trial No. 34 of 2020, arising out of\n\noriginal Case Crime No. 67 of 2020, and, as per the order\n\ndated 22.04.2022, he has been sentenced to undergo\n\nrigorous imprisonment      for a period of twenty years, for\n\nthe offence underSection 3read withSection 4of the\n\nProtection of Children from Sexual Offences Act, 2012\n\n(hereinafter referred as "POCSO Act" for brevity) and to\n\npay a fine of `30,000/-, and, in default of payment of fine,\n\nfurther to undergo additional simple imprisonment for six\n\nmonths.3.          Ms. Pratiksha Tripathi, the learned counsel\n\nappearing     for   the   appellant   would   submit    three\n\ncontentions before us. Firstly, she would submit that the\n\nprosecution has failed to prove the date of birth of the\n\nprosecutrix, and, the documents that have been filed in\n\nthe Court are not admissible in evidence. Secondly, she\n\nwould submit that the entire statements of the prosecutrix\n\nare not supported by any of the attending circumstances\n\navailable on record. Thirdly, she would submit that the\n\nappellant being a young man, aged about 19 years at the\n\ntime of occurrence, may face insurmountable difficulties in\n\nhis future life, if he is not granted bail upon appeal and the\n\nsentence is not suspended.4.          On the other hand, the learned Deputy Advocate\n\nGeneral would submit that the statement made by PW2,3the mother of the victim, along with the materials\n\navailable on record i.e. the entries made in the School\n\nRegister, the application for admission in the School and a\n\nXerox copy of the Birth Certificate issued by the Registrar\n\nof Birth and Death would be sufficient to come to the\n\nconclusion that the prosecution has proved its case beyond\n\nreasonable doubt that the prosecutrix date of birth is\n\n19.04.2005 and she is a minor even today.5.        The learned Deputy Advocate General would\n\nfurther submit that the evidence of PW1, the prosecutrix\n\nherself, is sufficient to establish the case underSection\n\n376of the Indian Penal Code, 1861 as well as underSection 3/4of the POCSO Act, as her evidence stands at a\n\nhigher footing.6.        As far as, the consent is concerned, the learned\n\nDeputy Advocate General would submit that at that time\n\nthe victim was less than 16 years and, therefore, there\n\nwas no question of any consent given by her and any such\n\nconsent, is no consent in the eyes of law.7.        The learned counsel appearing for the appellant\n\nrelied upon the judgment of the Hon'ble Supreme Court in\n\nthe case of C.Doddanarayana Reddy(D) By Lrs. vs\n\nC.Jayarama Reddy (Dead) By Lr., (2020) 4 SCC 659\n\nand stated that unless its birth certificate is proved by the4maker and its School Register is signed by the maker of\n\nthe same, it cannot be taken into consideration while\n\ndetermining the age of a person.8.        At this stage, we are not inclined to enter into a\n\ndetailed examination of the entire evidence on record,\n\nespecially, in view of the proof of the School Register,\n\nwhich reflects the date of entry to the School and such\n\ndocument has been exhibited on behalf of the prosecution\n\nwithout any objection. Moreover, such documents receive\n\ncorroboration from the testimony of PW2, who appears to\n\nbe the mother of the prosecutrix, who has stated in very\n\ncategorically terms, that her date of birth is 19.04.2005.As far as, the corroboration of evidence of PW1 is\n\nconcerned, we take note of the quoted judgment ofBharwada Bhoginbhai Hirjibhai vs State Of Gujarat,\n\n(1983) 3 SCC 217, in which the Hon'ble Supreme Court,\n\nwhile deciding the question of appreciation of evidence in a\n\ncase of sexual assault, has held that why should the\n\ntestimony of a girl or woman who accuses of sexual\n\nassault, should be viewed with glasses tinged with doubt\n\nand disbelief. Seeking corroboration to the testimony of a\n\nvictim of sexual assault is like adding insult to injury.9.        In that view of the matter, we are of the\n\nopinion, at this Stage, prima facie, while considering the\n\napplication for suspension and sentence that the evidence5of PW1 inspired confidence and there is no reason to come\n\nto the conclusion at this stage, of course, without having a\n\nthreadbare examination of the evidence of PW1, that the\n\nimpugned judgment do not suffer from any patent\n\nabsurdity or illegality, requiring the suspension of the\n\nsentence and grant of bail upon the appeal. In that view of\n\nmatter, we are not inclined to allow the application. The\n\napplication for bail and suspension of sentence, is hereby,\n\ndismissed.10.         It is brought to our notice that paper book has\n\nbeen prepared and the same has been supplied to the\n\nlearned Deputy Advocate General.11.         Let a copy of the paper book be supplied to the\n\nlearned counsel appearing for the appellant.12.         The matter be listed in the first week of January,\n\n2023 for final disposal.________________\n                                           S.K. MISHRA, J.___________________\n                                   ALOK KUMAR VERMA, J.Dt: 19th July, 2022\nAK/SB