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Himachal Pradesh High Court · body

2000 DIGILAW 235 (HP)

HARI SINGH v. STATE OF H. P.

2000-09-07

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—By this application the petitioner/accused (here-after referred to as "the accused") has prayed for his release on bail in case FIR No. 142 of 2000, dated 10.8.2000 under Section 376/506 of the Indian Penal Code, registered at Police Station, Joginder Nagar. 2. The application has been moved on the grounds that the accused has been falsely implicated in the case due to family rivalry, that he is innocent, there is no likelihood of his absconding if released on bail. The presecutrix in the case is stated to be major and the accused aged 45 years having three married issues and one unmarried daughter. 3. The case of the prosecution against the accused, in brief, is that the presecutrix was preparing meals some-time in December 1999 at about 12.15. p.m. in her kitchen room when she was all alone. The accused came there to return certain untensils. When the presecutrix went to the adjoining room to keep the untensils, the accused who is her uncle, followed her and over-powered her in the room and committed rape on her. On her protest, he threatened her to be eliminated along with her other family members. Thereafter, the accused further raped the presecutrix twice but due to the fear of the accused, she could not divulge the occurrence Jo any one. On 10.8.2000, on inquiries made by her mother about bulging of her abdomen, the presecutrix informed her mother about the occurrence and that she was having pregnancy of eight months. The matter was then reported to the police and investigation followed. On medical examination, the presecutrix was found pregnant, exposed to sexual intercourse, having pregnancy of 33 weeks and she had given birth to a female child on 25.8.2000. 4. Investigation in the case is complete except that NDA test of the blood of the female child, the prosecutrix and the accused is to be got conducted. 5. I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the State and have also gone through the record. 6. A perusal of the investigation record, particularly the statement of the prosecutrix and her having given birth to a female child, prima facie, supports the prosecution case against the accused. 5. I have heard the learned Counsel for the accused and the learned Assistant Advocate General for the State and have also gone through the record. 6. A perusal of the investigation record, particularly the statement of the prosecutrix and her having given birth to a female child, prima facie, supports the prosecution case against the accused. There is no material on the record to hold at this stage that the accused is innocent and is not connected with the commission of the offences alleged to have been committed by him. 7. There is no dispute that the prosecutrix at the relevant time was more than 16 years of age but this fact alone is not sufficient to conclude that the presecutrix was a consenting party to the act of sex committed with her by the accused. She is niece of the accused, she has studied upto 9th standard, she belongs to a Hindu family, therefore, she cannot be expected to have consented for sex with her own uncle. Thus, pritna facie, the accused is shown to have committed a grave offence for which severe punishment has been provided in law. 8. Since the accused is the uncle of the prosecutrix who could not complain against him about the alleged acts unless the inquiries were made by the mother of the presecutrix when the presecutrix was in a position not to conceal anything, even if the fear was there, therefore, the possibility of the accused over-awing the prosecutrix to resile from her statement cannot be ruled out if the accused is ordered to be released on bail. 9. It has been submitted for the respondent/State that the NDA test in the case will be got conducted at the earliest. In case the report of such test is favourable to the accused, he may approach the Court for bail in view of the changed circumstances. However, at this stage he is not entitled to be released on bail. 10. As a result, this application deserves to be dismissed and is accordingly dismissed. Application dismissed.