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Himachal Pradesh High Court · body

2014 DIGILAW 1474 (HP)

Raj Kumar son of Shri Ram Swaroop v. State of H. P.

2014-10-18

P.S.RANA

body2014
ORDER P.S. Rana, J. Present application filed under Section 439 of the Code of Criminal Procedure 1973 for grant of bail in case registered against the applicant vide FIR No. 270 of 2013 dated 12.12.2013 registered under Sections 363, 366, 376 of Indian Penal Code and Section 4 of Protection of Children from Sexual Offences Act 2012 registered in Police Station Solan. It is pleaded that applicant is in custody since 29.12.2013. It is further pleaded that prosecutrix was produced before Chief Judicial Magistrate Solan and her statement under Section 164 Cr.P.C. was recorded. It is pleaded that challan was presented by Investigating Agency in the month of April 2014 and now case is fixed for 27.9.2014 for consideration on charge. It is pleaded that false case has been fabricated against the applicant and applicant is innocent and applicant has not committed any offence. It is pleaded that prosecutrix belongs to higher caste and applicant belongs to scheduled caste. It is pleaded that no recovery is to be effected from the applicant. It is pleaded that age of applicant is 21 years and applicant is in his prime youth. It is pleaded that applicant undertakes not to influence any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court. It is also pleaded that applicant undertakes not to tamper with prosecution evidence in any manner and applicant will abide by terms and conditions imposed by the Court. It is pleaded that grandmother of applicant is aged about 75 years and she was regularly looked after by the applicant prior to his arrest. Prayer for acceptance of bail application sought. 2. Per contra police report filed. As per police report, FIR No. 270 of 2013 dated 12.12.2013 registered under Sections 363, 366 and 376 of Indian Penal Code and 4 of Protection of Children from Sexual Offences Act 2012 in Police Station Solan. There is recital in police report that on dated 12.12.2013 Vidya Devi widow of late Shri Mangat Ram resident of village Breweri Tehsil and District Solan came in police station and reported that she is resident of village Breweri. There is further recital in police report that daughter of complainant namely Sudesh Sharma and her son-in-law namely Raj Kumar Sharma have died and their children are residing with complainant Vidya Devi. There is further recital in police report that daughter of complainant namely Sudesh Sharma and her son-in-law namely Raj Kumar Sharma have died and their children are residing with complainant Vidya Devi. There is further recital in police report that prosecutrix born on dated 11.2.1998 and prosecutrix left the school from ninth class. There is further recital in police report that on dated 6.12.2013 at about 11 AM prosecutrix went to somewhere without informing and did not come back to her residential house and she was traced in the house of relatives but could not be traced. Criminal case was registered and during investigation statements of Arun Kumar and Sat Pal recorded. There is further recital in police report that prosecutrix and applicant Raj Kumar were traced at Solan, Salogra, Baag, Ashwani river. There is further recital in police report that on dated 29.12.2013 a telephone came from Ex-Pardhan Kanti Saroop G.P. Salogra who informed that prosecutrix and applicant were seen on Ashwani river road near Mohan Shakti park. There is also recital in police report that minor prosecutrix and applicant were found near Mohan Shakti Park and thereafter statement of minor prosecutrix was recorded. There is further recital in police report that on dated 6.12.2013 applicant Raj Kumar kidnapped minor prosecutrix and kept the minor prosecutrix w.e.f. 6.12.2013 to 29.12.2013 and also developed illicit relations. There is further recital in police report that minor prosecutrix and Raj Kumar applicant were medically examined in Regional Hospital Solan. There is further recital in police report that statement of minor prosecutrix was also recorded under Section 164 Cr.P.C. by learned Chief Judicial Magistrate Solan. There is recital in police report that applicant took minor prosecutrix to residential house of his friend namely Anil Kumar situated in Uttar Pradesh and developed illicit relations with minor prosecutrix. There is further recital in police report that relatives of minor prosecutrix refused to keep the minor prosecutrix with them and thereafter minor prosecutrix was sent to Child Line Solan on 30.12.2013 and thereafter she was transferred to Child Line Shimla. There is further recital in police report that place of incident was located as per location shown by minor prosecutrix. There is further recital in police report that as per medical officer opinion sexual intercourse in the past could not be ruled out upon minor prosecutrix. There is further recital in police report that place of incident was located as per location shown by minor prosecutrix. There is further recital in police report that as per medical officer opinion sexual intercourse in the past could not be ruled out upon minor prosecutrix. There is further recital in police report that extract of admission and withdrawal register also obtained. Prayer for dismissal of bail application sought. 3. Court heard learned Advocate appearing on behalf of the applicant and learned Additional Advocate General appearing on behalf of the State and also perused the record. 4. Submission of learned Advocate appearing on behalf of applicant that applicant is innocent and applicant did not commit any offence cannot be decided at this stage. Same fact will be decided when case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 5. Another submission of learned Advocate appearing on behalf of the applicant that any condition imposed by Court would be binding upon the applicant and grandmother of applicant is aged 75 years and there is no person to look after the grandmother of applicant who is aged 75 years and age of applicant is 21 years and in view of above stated facts applicant be released on bail is rejected being devoid of any force for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. 6. In present case applicant is facing serious charges of criminal offence punishable under Sections 363, 366 and 376 of Indian Penal Code and Section 4 of Protection of Children from Sexual Offences Act 2012. As per Section 30 of the Protection of Children from Sexual Offences Act 2012 there is presumption of culpable mental state unless rebutted in accordance with law. As per Section 30 of the Protection of Children from Sexual Offences Act 2012 there is presumption of culpable mental state unless rebutted in accordance with law. Offences of rape are increasing in the society day by day and sexual assault upon minor prosecutrix is stigma upon the society. It is well settled law that Courts are under legal obligation to protect the minors. It is also well settled law that murder destroys the body of victim but rapist degrades the soul of woman or minor prosecutrix. Court is of the opinion that if applicant is released on bail at this stage then trial of the case will be adversely effected. Court is also of the opinion that if applicant is released on bail at this stage then interest of the State and general public will also be adversely effected. The allegations against the applicant are that applicant has committed penetrative sexual assault upon minor prosecutrix w.e.f. 6.12.2013 to 29.12.2103 repeatedly. There is apprehension in the mind of Court that if applicant is released on bail at this stage then applicant will induce and threat the prosecution witnesses. It is not expedient in the ends of justice to release the applicant on bail till statement of minor prosecutrix is not recorded in Court. 7. In view of above stated facts bail application filed by applicant is rejected. Learned trial Court is directed to expedite the trial because applicant is in judicial custody. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of bail application filed under Section 439 of Code of Criminal Procedure 1973. Application stands disposed of. All pending miscellaneous application(s) if any also stands disposed of.