Janardhan Prasad Joshi vs State of Uttarakhand

Umesh Chandra Dhyani, J.

The applicant seeks fifth bail in connection with Session Trial No. 16/2014 (Crime No. 358 of 2013), under sections 376(1), 366/511 and 506 I.P.C. relating to P.S. Kotwali Dehradun, District Dehradun. Allegedly, it is a case of sexual assault by a Government Servant on the promise of providing Government job to a victim. A counter-blast First Information Report was also lodged by the applicant against the prosecutrix and others. Acquaintance with the prosecutrix and a woman leader of a political party, as also making a phone call to an institute to help her provide a job was admitted in the first bail application. After considering the facts and circumstances of the case, the first bail application of the applicant was dismissed by this Court, vide order dated 24.2.2014.

The applicant, then, moved second bail application, which was also dismissed by this Court, vide order dated 7.4.2014.

The third bail application was moved on the grounds, inter alia, that the applicant is suffering from hypertension, diabetes, spinal complaints and is also having complaint of chronic low backache with recurrent pain and numbness over right lower limb. This Court, although, did not find substance in the third bail application but requested the then Medical Officer, Dehradun to provide medical treatment to the applicant. Third bail application was also dismissed.

When the fourth bail application was moved, the applicant was directed to move an application under section 437(7) Cr.P.C., before the Trial Court for his release on bail. The applicant availed that remedy, but he was not granted relief by the Trial Court citing the limited scope of section 437(7) Cr.P.C., as also the fact that many more prosecution witnesses are yet to be examined.

Feeling aggrieved against the same, the applicant has been compelled to move the fifth bail application on a new ground that the prosecution/victim has not supported the prosecution story. The evidence of PW1 has been enclosed by the applicant with the present bail application.

The evidence of PW1 (prosecutrix) was recorded by the Trial Court on different dates. The entire text of her evidence has been enclosed as Annexure No. 3 to the present bail application. The entire contents of the evidence of PW1 has been read over by learned Counsel for the applicant, in the presence of learned Counsel for the State, in the open Court. It is not necessary for this Court to reproduce the entire text of her evidence. Suffice will it be to say, at this stage, that PW1 has not, at all, supported the prosecution version. She was cross-examined by learned Prosecutor before the Court below at great length. It will not be proper on the part of this Court to discuss the pros and cons of the evidence of PW1, for, the same may prejudice the opinion of the Court below and affect the trial. Needless to say that the statement of the prosecutrix/victim, in sexual assault case, has a great bearing on the merits of the case. It is unlike other injury cases, in which, the case is decided not only on the basis of the evidence of the injured, but also on the basis of the testimony of the eyewitnesses. In sexual assault cases/rape cases, there cannot be any eye-witness. The whole thing largely depends upon the evidence of the prosecutrix/victim. If other prosecution witnesses are examined in this case, the same will, no doubt, will have bearing on the outcome of the case, but evidence of the prosecutrix/victim, in rape case, is of paramount importance, which cannot be lost sight of at any cost. One cannot deny the fact that the prosecutrix/victim, in the instant case, has denied the allegations of sexual assault against the applicant and has said that the name of the present applicant was mentioned by her at the instance of someone else.

Learned Counsel for the applicant has drawn the attention of this Court towards sub-section (2) of section 437 Cr.P.C. to argue that if, it appears to the Court at any stage of trial, that there are no reasonable grounds for believing that the accused has committed an offence, the accused shall be released on bail.

The statement of PW1 has triggered collapse of the prosecution story. Whether such statement is believable or not, it is for the trial Court to assess the same, for, many more persons are yet to enter into the witness box. It is only a trailer which may often be misleading. The trailer may sometimes be according to the script of the story. This Court is, therefore, not inclined to conduct a mini trial'' at this stage. Evaluation of evidence, at the first instance, is the prerogative of the Trial Court.

The applicant is in jail since 3.12.2013 and there appears to be no chance of his threatening or influencing prosecution witnesses, if he is enlarged on bail, for, the main witness has already been examined by the Trial Court. Fifth bail application of the applicant is accordingly allowed principally on the ground that the prosecutrix/victim has not supported the prosecution story before the Trial Court.

Let accused-applicant be enlarged on bail on his executing a personal bond and furnishing two sureties of like amount to the satisfaction of the Trial Court.