"Merely because the DNA report (of the rape victim) does not match with the petitioner cannot be termed to be a circumstance to conclude that the petitioner is not involved in the crime", observed the Punjab and Haryana High Court in denying bail to a gang-rape accused.
The petitioner before Justice Vivek Puri sought regular bail in connection with a FIR dated 04.05.2018, under Sections 342/363/366A/376D/506 read with Section 34 IPC and Sections 6 and 7 of Protection of Children from Sexual Offences Act.
The Single Bench recorded that the aforesaid FIR has been registered at the instance of complainant on the allegations that during the intervening night of 03/04 May, 2018 between 12:00 afternoon to 02:00 A.M., his daughter had come
to his shop to provide tea. While returning back, she was kidnapped by one Bir Singh, one Naveen (the present petitioner) and an unknown boy. The complainant had tried to trace her and found her in a room, with all the boys present. The victim had alleged that she was subjected to gang rape by the three persons named above and one Sonu and that they had threatened to kill her, in the event she disclosed about the incident.
It was contended by the counsel for the petitioner that he was found innocent during the course of investigation and had in fact been summoned under Section 319 Cr.P.C. Moreover, the co-accused, namely, Sonu, has been granted bail by a Coordinate Bench of this High Court. Furthermore, the DNA report does not match with the petitioner.
On the other hand, the state counsel argued that the case of the petitioner was not at par with that of Sonu. Moreover, it was urged that it is a case of gang rape and that the petitioner has been summoned under Section 319 Cr.P.C. as the victim had levelled specific and categoric allegations with regard to commission of gang rape against her. Besides, it was pointed out that the order dated 07.01.2019, vide which the petitioner has been summoned, has also been upheld by this Court, vide order dated 09.07.2019.
"It is a case of gang rape and merely because the DNA report does not match with the petitioner cannot be termed to be a circumstance to conclude that the petitioner is not involved in the crime", observed Justice Puri. Moreover, the Single Judge opined that the case of the petitioner cannot be termed to be at par with that of Sonu, the co-accused- "In her statement recorded during the course of trial, the victim has specifically and categorically identified Bir Singh and Naveen, though, she has denied the implication of Sonu, co-accused".
"Merely because the petitioner was found innocent during the investigation cannot be construed as a mitigating circumstance to extend concession of bail", held the High Court. The Single Bench noted that the petitioner has been summoned by the trial Court under Section 319 of the Code of Criminal Procedure and the said order has a seal of approval of the High Court.
Accordingly, it expressed the view that no ground is made out to extend the concession of bail to the petitioner.