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2014 DIGILAW 240 (HP)

Anil Kumar v. State of Himachal Pradesh

2014-03-21

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chudhary, J. Learned Additional Advocate General has placed on record the status report and Investigating Officer, ASI Mohan Singh of Police Station, Sadar, Solan has produced the record. 2. Heard. 3. Petitioner is an accused in FIR No.5 of 2014 registered under Sections 363, 376, 511, 506 and 342 of Indian Penal Code (hereinafter referred to as "the Code" in short) read with Section 18 of the Protection of Children from Sexual Offences Act, 2012 in Police Station Sadar, Solan, District Solan. 4. The allegations, in a nutshell, are that on 7th January, 2014 he kidnapped the prosecutrix, a minor girl, aged 17 years from a place known as D.C. Office chowk in Solan Town by pulling her forcibly inside the Alto Car. She was taken to hotel Himani, Solan where he had hired one room. In the room, he attempted to subject her to sexual intercourse, however, she managed her escape by picking up a flower pot lying on the table and threw the same on his head. He fell down. She hurriedly put on her cloths and came out of the room. 5. Without lamenting much on the merits of the case and also the evidence collected by the Investigating Agency because in that event prejudice is likely to be caused to the case of either party, suffice would it to say that not only as per her own statement, but the scientific investigation conducted in this case at this stage, prima facie, reveals that the prosecutrix has not been subjected to sexual intercourse. The present, therefore, appears to be a case of attempt to rape punishable under Section 376 read with Section 511 of the Code and also under Section 18 of the Protection of Children from Sexual Offences Act, 2012. 6. On the basis of record available at this stage, it appears that the accused and the prosecutrix had intimacy with each other, which even is not disputed also. Therefore, they used to contact with each other and they seem to have come in contact with each other through another lady, namely, Reena Bhardwaj. She has also been associated in the investigation of the case. She seems to be with the prosecutrix when the accused allegedly picked up her from D.C. Office Chowk. Therefore, they used to contact with each other and they seem to have come in contact with each other through another lady, namely, Reena Bhardwaj. She has also been associated in the investigation of the case. She seems to be with the prosecutrix when the accused allegedly picked up her from D.C. Office Chowk. However, nothing incriminating that the accused used force in enticing away the prosecutrix, has come in her interrogation as found mentioned in the zimnis recorded by the Investigating Officer during the course of investigation. The place, D.C. Office Chowk at Solan is a busy place and situated in the heart of the town. The time being 10 a.m. and office/school-college time, prima facie, the accused could have not dared to drag the prosecutrix at that place and made her to sit in the car forcibly. The CCTV Footage of hotel Himani admittedly does not reveal that she was taken inside the hotel forcibly. No doubt, an offence of this nature is not only heinous but grievous also. However, the other aspect is that liberty of a citizen has also to be balanced of course keeping in mind the gravity of the alleged offence and the manner in which the same committed. Learned counsel in the given facts and circumstances seeks liberal interpretation so that the personal liberty of the accused-petitioner is not affected at this stage when he is yet to be tried by the competent Court. It is well settled that at the time of consideration of an application of this nature, the availability of the offender for the purpose of investigation and ultimately at the time of trial should be the paramount consideration. The accused-petitioner belongs to adjoining district Sirmour. He is serving in Central Reserved Police Force as Constable. It can, therefore, reasonably be believed that he has roots in the society. Challan against the accused stands filed. This Court otherwise also sees no reason that he will jump over the bail and abscond and will not be available at the time of trial. His movements can otherwise be restricted by imposing suitable conditions upon him. 7. The application is, therefore, allowed. Consequently, it is ordered that the accused-petitioner, who has been arrested in connection with this case is ordered to be released on bail subject to his furnishing personal bond in the sum of Rs. His movements can otherwise be restricted by imposing suitable conditions upon him. 7. The application is, therefore, allowed. Consequently, it is ordered that the accused-petitioner, who has been arrested in connection with this case is ordered to be released on bail subject to his furnishing personal bond in the sum of Rs. 2,00,000/- with two sureties each in the like amount to the satisfaction of learned Chief Judicial Magistrate/Judicial Magistrate, Solan. He shall abide by further conditions that: He shall; (a) regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) not tamper with the prosecution evidence nor make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; (c) keep on visiting and informing the Station House Officer, Police Station, Sadar, Solan about his whereabouts on any day in the first week of each and every calendar month till the statements of material witnesses are recorded; and (d) not leave the territory of India without the prior permission of the Court. 8. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 9. The observations made here-in-above shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The application stands accordingly disposed of. Application allowed.