BA1/1411/2020 of SHIVAM GUPTA Vs STATE OF UTTARAKHAND

HIGH COURT OF UTTARAKHAND AT NAINITAL First Bail Application No. 1411 of 2020

Shivam Gupta

………….......Applicant

State of Uttarakhand

Present:

Mr. Gikas Kumar Guglani, counsel for the applicant. Mr. V.K.Jemini, Deputy A.G. for the State.

…………...Respondent

Hon’ble Ravindra Maithani, J.(Oral)

The applicant – Shivam Gupta is in judicial custody in FIR No. 101 of 2020, under Sections 363, 366A, 376(2) IPC, and ¾ of the Protection of Children from Sexual Offences Act, 2002, Police Station Sitar Ganj, District Udham Singh Nagar. He has sought his release on bail.

2. Heard learned counsel for the parties through Video Conferencing and perused the material available on records.

3. Victim, girl aged about 16 years, went missing on 18[th]March, 2020, at 3:00 P.M. She left her father’s house. She was searched, but could not be traced. report was lodged by her father, on the same day. She was subsequently recovered.

4. Learned counsel for the applicant would argue that the statement of the victim is not reliable with regard to physical relations; applicant and victim were in friendly relations, but, they did never establish physical relations; the applicant never called the victim instead, it is the victim, who called the applicant at the instance of her aunt, as stated by her in statement given under Section 164 of the Code of Criminal Procedure, 1973 (the Code). It is argued that the statement of the victim under Section 161 and 164 of the Code are much

contrary with regard to date of establishing physical relations; the applicant did not entice the victim.

5. On behalf of the State, it is argued that the victim was girl minor in age; her date of birth was 12[th] April, 2004; she left her house on 18[th] March, 2020, when still she had not completed 16 years of age.

6. The statement of the victim recorded under Section 161 and 164 of the Code has been filed by the State along with the counter affidavit. At the stage of bail, much of the discussion is not required. In her statement recorded under Section 161 of the Code, the victim says that she was in love with the applicant; they wanted to marry; on 18[th]March, 2020, they eloped together and once they established physical relations. On the other hand, in the statement recorded under Section 164 of the Code, she says that her aunt had persuaded her to call the applicant, whereupon she called the applicant but they did not establish physical relations; they had physical relations in the year 2019; the statement of the victim is contradicting on material issue regarding as to when did they established physical relations? And it makes out case for bail.

8. Bail application is allowed. Let the applicant- Shivam Gupta be enlarged on bail, on his executing personal bond and furnishing two sureties, each of the like amount, to the satisfaction of the Court concerned.

9. Let copy of this order be sent to the concerned court and jail through e-mail also.

Kaushal

(Ravindra Maithani, J.)

21.09.2020