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2003 DIGILAW 21 (HP)

Sunil Kumar v. State of Himachal Pradesh

2003-02-07

M.R.VERMA

body2003
JUDGMENT : M.R. Verma, J. This is a petition under section 439 of the Code of Criminal Procedure whereby the petitioner/accused (hereafter referred to as 'the accused') has prayed for grant of bail in case F.I.R. No. 2 of 2003 dated 1.1.2003 under sections 366 and 376 I.P.C. registered at Police Station, Bhavanagar. 2. Case against the accused in brief is that the prosecutrix daughter of Shyam Sukh aged about fifteen and half years was residing with him in village Sangala and was studying in 10th standard in Govt. High School, Nigulsari. The Prosecutrix came in contact with the accused who proposed to marry her. Finally, on persuasion of the accused, the prosecutrix in the absence of the her parents from home accompanied accused to Deothi They stayed at Deothi for three days and then came to Rampur and from Rampur accused took the prosecutrix to Baldwara and kept her in his house till 2.1.2003 when on the persuasion of the prosecutrix he took her back to Recong Peo from where they were to go to her parents house. While waiting for a bus in a Rain Shelter in Bhavanagar on 4.1.2003 the father of the prosecutrix and the police reached there. The police took action in accordance with law regarding recovery of the prosecutrix and handing her over to her father and the investigation proceeded. On investigation the investigating Agency has found that the accused has committed the offences for which the F.I.R. had been lodged. At present the accused is in judicial custody, hence, no more required for the purpose of investigation. 3. I have heard the learned counsel for the accused and the learned law Officer for the respondent/State and have also gone through the investigation records. 4. It was contended by the learned counsel for the accused that the prosecutrix voluntarily accompanied the accused, solemnized marriage with him and is staying in his house as his wife. It has further been contended that in any case if released on bail the accused is not likely to abscond or tamper with the prosecution evidence, therefore, he may be released on bail. 5. It has further been contended that in any case if released on bail the accused is not likely to abscond or tamper with the prosecution evidence, therefore, he may be released on bail. 5. On the other hand, the learned law Officer has contended that the prosecutrix at the relevant time was less than 16 years of age and in view of the material collected during the investigation, the accused is prima facie shown to have committed offences alleged to have been committed by him, therefore, keeping in view the gravity of the offences he is not entitled to be released on bail. 6. It may be pointed out at the very outset that it is not in dispute and can also be gathered from the material on record that the prosecutrix voluntarily accompanied the accused initially to Deothi on 6.10.2002 and they married in Tranda Temple on the same day. Thereafter the prosecutrix even resided in the house of the accused as his wife and on her request the accused took her to Recong Peo on 2.1.2003 to enable her to see her parents. It is also not in dispute that at present the prosecutrix is residing with the parents of the accused for the last about one month and is present in the court with them. No doubt, the material on record particularly prima facie the evidence regarding the age of the prosecutrix reveals commission of the offences alleged to have been committed by the accused. However, there are circumstances, as already stated hereinabove, which mitigate the gravity of the offence and even otherwise gravity of offence by itself may not be a reason for denial of bail if otherwise the presence of the accused can be secured to put him on trial and it can be ensured that there is no likelihood of the accused tampering with the prosecution evidence. It is not the case of the State that if released on bail the accused is likely to tamper with the prosecution evidence or is likely to abscond. 7. In view of the above discussion, this application is allowed and the accused is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Kinnnaur at Recong Pseo or any Judicial Magistrate at Rampur. 7. In view of the above discussion, this application is allowed and the accused is ordered to be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Kinnnaur at Recong Pseo or any Judicial Magistrate at Rampur. The bail, however, is subject to the conditions that the accused shall not tamper with the prosecution evidence and shall not deliberately or intentionally act in a manner which may tend to delay the trial of the case.