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Himachal Pradesh High Court · body

2009 DIGILAW 1338 (HP)

VISHAL NEGI v. STATE OF HIMACHAL PRADESH

2009-12-23

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J.(Oral)-This is an application under Section 439 Cr.P.C. for grant of bail to the petitioner in FIR No. 149 of 2009 dated 11.8.2009 registered at Police Station, Rampur, under Section 376 IPC. The status report has been filed. 2. Heard and perused the record. It has been submitted on behalf of the petitioner that petitioner is in custody since 12.8.2009. The petitioner is innocent and he has committed no offence. The investigation in the case is complete and no recovery is to be made from the petitioner. The challan has been submitted and the case is now fixed on 21.1.2010 for consideration of charge. The petitioner had earlier filed bail application before the learned Sessions Judge, Kinnaur which was dismissed as not pressed. The petitioner is 20 years of age having spouse and seven months child. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. The learned counsel for the petitioner has prayed for grant of bail to the petitioner. 3. The bail application has been opposed by the learned Additional Advocate General. He has submitted that the petitioner has committed heinous crime and therefore, petitioner is not entitled to bail. The prosecution case as emerges from the status report is that prosecutrix aged 16 years reported the matter at Police Station, Rampur on 11.8.2009. The prosecutrix was a student of G.G.S.S.School, Rampur of 10+1 class. She was taking tuition of Physics from a coaching centre since 14.7.2009. On 8.8.2009 in Racholi fair Vishal Negi alias Vishu met her and extended friendship hand to her, the prosecutrix accepted the offer of Vishal Negi. On 10.8.2009 Vishal met the prosecutrix at Pipti road at 4.00 p.m. and asked the prosecutrix to meet him after tuition class. At about 6.00 p.m. after tuition, Vishal met the prosecutrix at Shishu Park, Gaura Road, he offered to take prosecutrix on motorcycle which prosecutrix refused and she went on walking. At Pipti Vishal came and she sat on the bike. He took her to Ropru, they went down the road and sat together for some time and thereafter returned. They were proceeding towards Pipti, Vishal noticed father of the prosecutrix and Vishal sped away from that spot. At Pipti, he asked the prosecutrix to walk on foot and told prosecutrix that he would meet her at Indira market. He took her to Ropru, they went down the road and sat together for some time and thereafter returned. They were proceeding towards Pipti, Vishal noticed father of the prosecutrix and Vishal sped away from that spot. At Pipti, he asked the prosecutrix to walk on foot and told prosecutrix that he would meet her at Indira market. They met at Indira market, he took the prosecutrix to Jagatkhana, a boy Ranjan met there, who told that he is cousin of Vishal. The prosecutrix and Vishal slept in one room. Ranjan slept in another room. Vishal during the night thrice committed forcible sexual intercourse with prosecutrix against her wish. On 11.8.2009 at about 6.00 father of Vishal came there. He scolded Vishal and told prosecutrix that Vishal is already married. The father of Vishal asked the prosecutrix to go to her home. Ranjan cousin of Vishal boarded her on three-wheeler and left the place and prosecutrix reached Racholi where her father and uncle met her. The prosecutrix narrated the incident to them as well as her aunt (Bua) and thereafter, reported the matter to the police. 4. The prosecutrix was got medically examined. The petitioner was arrested. The doctor gave the opinion that the sexual assault could not be ruled out. The petitioner was found capable of performing sexual intercourse. As per age certificate, the date of birth of prosecutrix is 1.4.1993. The learned Additional Advocate General has prayed for dismissal of the bail application. 5. I have considered the submissions made on either side. The prosecution case has already been noticed above. As per panchayat record, the date of birth of the prosecutrix is 1.4.1993. In the MLC of the prosecutrix, no sign of struggle or abrasion on body and genitalia was noticed by the doctor. Vagina admits speculum easily. Cervix is soft and healthy, admits two fingers easily. As per final opinion of the doctor, the sexual assault could not be ruled out. The occurrence is of 10/11.8.2009 and on that date as per the date of birth of prosecutrix, she was above 16 years. According to prosecutrix she herself accepted the friendship of the petitioner. At this stage, I do not want to comment on the material collected during investigation so that any observation made by me may not prejudice the case of either side. According to prosecutrix she herself accepted the friendship of the petitioner. At this stage, I do not want to comment on the material collected during investigation so that any observation made by me may not prejudice the case of either side. It is enough to observe at this stage that petitioner has made out a case for grant of bail. Accordingly, application under Section 439 Cr.P.C. is allowed. The petitioner is ordered to be released on bail in FIR No.149 of 2009 dated 11.8.2009 registered at Police Station, Rampur, under Section 376 IPC, on his furnishing personal bond in the sum of Rs. 20,000/- with one surety of the like amount to the satisfaction of the learned Sessions Judge, Kinnaur at Rampur with the condition that the petitioner shall not tamper the prosecution evidence or terrorize the prosecution witnesses and shall not leave the jurisdiction of the trial Court without the leave of the trial Court. 6. The observations made in this order are for disposal of bail application only and the same shall not be construed as expression of opinion on the merits of the case.