Rajasthan High Court: In a bail application filed by the petitioner under Section 439 of the Criminal Procedure Code, 1973 (‘CrPC’), Manoj Kumar Garg, J., opined that dispute that as per the Forensic Science Laboratory Report, although semen could not be detected, but there was swelling and redness in the private parts of the deceased. Therefore, the offence under Sections 376(1) and 305 read with Section 120-B of the Penal Code, 1860 (‘IPC’) and Sections 3 and 4 of the Prevention of Children from Sexual Offences Act, 2012 (‘POCSO’) were prima facie proof against the petitioner. Further, the Court opined that, since the suicide note was allegedly recovered from the deceased’s pocket, it could not be said that at this stage, that it was a substantial piece of evidence and it should be considered at the time of trial. Therefore, the Court rejected the bail application.
Background
In an instant case, the petitioner was arrested in connection with FIR registered for the offences punishable under Sections 363, 366A, 376(a), 305 read with Section 120B of the IPC, Sections 3 and 4 of the POCSO and Section 3(1)(w)(i), 3(2)(v)(va) of Schedule Case and Schedule Tribe (Prevention of Atrocities) Act, 1989 and Section 84 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
The petitioner submitted that as per the allegations, two girls went missing and it was alleged that one of the girls went with the co-accused, whereas the other one went with the petitioner. Thereafter, the petitioner stated that their dead bodies were found near Narmada Canal and as per the postmortem report, the cause of death was due to drowning and a suicide note was also recovered from the trouser of one girl, in which the petitioner’s name was not mentioned.
The petitioner argued that after writing the suicide note, both the girls committed suicide by jumping into the canal and as per the report of handwriting expert, the disputed writing showed similarities with the standard writing. Thus, the petitioner contended that there was nothing on record to connect the present petitioner with the crime and filed a present bail application under Section 439 of the Criminal Procedure Code, 1973 (‘CrPC’).
However, the respondent contended that as per the postmortem report of the deceased, the cause of death was asphyxia due to working, and also, external and internal genitals-labia minor and major swelling. Therefore, it showed that the petitioner along-with the co-accused first committed rape and then killed them. Further, since the body was recovered after a considerable delay, semen could not be detected and swelling on their private parts indicated that the girls were sexually assaulted.
Analysis, Law, and Decision
The Court opined that it was undisputed that both the deceased went with the petitioner and co-accused and later on, their dead bodies were found. It was also not in dispute that as per the Forensic Science Laboratory Report, although semen could not be detected, but there was swelling and redness in the private parts of the deceased. Therefore, the offence under Sections 376(1) and 305 read with Section 120B of the IPC and Sections 3 and 4 of the POCSO were prima facie proved against the petitioner. Further, the Court opined that, since the suicide note was allegedly recovered from the deceased’s pocket, it could not be said that at this stage, it was a substantial piece of evidence and should be considered at the time of trial. Therefore, the Court rejected the bail application.
[Anil Kumar v. State of Rajasthan, 2023 SCC OnLine Raj 4238, Order dated 12-09-2023]
Advocates who appeared in this case :
For the Petitioner: Pradeep Shah, Advocate;
For the Respondent: Mukesh Trivedi, PP, Kshemendra Singh, Siddharth Tatiya, Advocates
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