Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 838 (HP)

Kapil Kumar v. State of Himachal Pradesh

2015-07-07

SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. The instant petition has been filed by the bail petitioner under Section 439 Cr.P.C, for his being released from judicial custody wherein he is presently lodged, for his having allegedly committed offences punishable under Section 3(i), (xi), (xii) of SC & ST Act, Section 4 of POCSO Act & Sections 376, 506 of the Indian Penal Code, recorded in FIR No. 30/2015 of 4.5.2015, registered with Police Station Shillai, District Sirmaur, H.P. 2. The Investigating Officer has filed a detailed status report. The initial version, as spelt out by the mother of the prosecutrix in the report lodged by her qua the incident before the police Station concerned, unravels the factum that about 2/3 months prior to the occurrence, the minor prosecutrix (aged approximately 15 years) was sent by her parents to look out for or search for their missing goat. She heeded to besides acceded to the request of her parents. However, even though, she had proceeded to launch the necessary search in the evening, yet she returned home on the succeeding day. The mother of the prosecutrix has unraveled, in her report lodged before the police station concerned, the fact that the prosecutrix on her returning home on being asked as to where she was throughout the night hers having disclosed that she had put up with one Surto Devi. She in conflict with the version qua the incident comprised in the opening paragraph of the F.I.R. wherein she on a prompt elicitation from the prosecutrix qua her whereabouts in the night preceding 2/3 months hitherto was communicated by the latter of hers having stayed overnight with one Surto Devi, has in the latter paragraph thereof attributed an inculpatory role to the bail applicant arising from the fact of the prosecutrix having 15 days prior to its lodging divulged to her the name of the bail applicant to have perpetrated forcible sexual intercourse upon her, obviously with an open rife inter-se contradiction existing in the opening and the latter part of the F.I.R. lodged qua the occurrence renders it to be imbued with the vice of prevarication. Consequently, it acquires a taint of falsity. Consequently, it acquires a taint of falsity. It appears that even when a manifest procrastination has occurred in the lodging of the F.I.R. qua the incident, the complainant has concocted the fact of threatenings having been meted out by the father of the bail applicant, along with two co-villagers, to the complainant on a day preceding to the lodging of the F.I.R. arising from theirs grazing their cattle in the fields. Aggravated momentum to the aforesaid inference of concoction is lent by the factum of even when 15 days prior to the lodging of the F.I.R. the prosecutrix had divulged the name of the bail applicant to be the person who perpetrated forcible sexual intercourse on her, hers having omitted to, in quick spontaneity thereto or with utmost dispatch report the matter to the Police Station concerned. It appears that to camouflage the delay in the lodging the F.I.R., the complainant has invented a story of the father of the bail applicant, along with two co-villagers, having a day prior to the reporting of the incident to the police having meted out threatenings arising from the purported act of the complainant grazing their cattle in the fields. Obviously when on the day succeeding to the purported meting of threatenings by the father of the bail applicant, along with two co-villagers, to the complainant, she met Kedar Singh Jindal, it hence appears that prior to its lodging there were confabulations inter-se the complainant and Kedar Singh Jindal, who concomitantly then inspired and engineered the lodging of the F.I.R. against the bail applicant. 3. The prosecutrix has subsequent to the lodging of the FIR qua the incident by her mother recorded a statement under Section 164 Cr.P.C before the Judicial Magistrate concerned, wherein she has unfolded a version of the bail applicant having subjected her to forcible sexual intercourse. 3. The prosecutrix has subsequent to the lodging of the FIR qua the incident by her mother recorded a statement under Section 164 Cr.P.C before the Judicial Magistrate concerned, wherein she has unfolded a version of the bail applicant having subjected her to forcible sexual intercourse. The Court hence is obliged to discern the veracity or the truthfulness of the version disclosed in the complaint vis-à-vis the version qua the incident spelt out belatedly by the prosecutrix in her statement recorded under Section 164 Cr.P.C. In an endeavour to gauge or fathom the veracity of the version existing in the FIR lodged qua the incident by the complainant and the version as subsequently spelt out by the prosecutrix in her statement recorded under Section 164 Cr.P.C, the factum of the belated lodging of a report qua the incident by the complainant ought not to be overlooked or slighted nor also this Court has to remain oblivious to the factum that even when a belated reporting of the occurrence has taken place, nonetheless if the version as spelt out qua the incident by the complainant in the FIR lodged by her to the police station concerned constitutes an inspiring or truthful evidence, its credibility cannot stand negation. Now for reiteration, for determining whether the genesis of the incident constituted in the FIR comprises an inspiring or truthful version qua the incident, an advertence is enjoined to be made to the initial paragraph of the FIR. Given the disclosure in the opening paragraph of the FIR qua the non-revelation by the prosecutrix to her mother on hers returning home on the day succeeding to hers having stayed elsewhere, of hers having been subjected to forcible sexual intercourse by the bail applicant would also be of immense succor to conclude whether the version as spelt out in the FIR is truthful or engineered. Now when in the FIR itself, there is a perse magnification of the prosecutrix having, on being asked by her parents qua her whereabouts or the place where she stayed overnight, answered that she had remained in the company of one Surto Devi does facilitates an inference that the prosecutrix had even 2/3 months after the ill-fated incident not divulged then to her mother the fact that she was subjected to forcible sexual intercourse by the bail applicant. The omission on the part of the prosecutrix then to communicate to her mother, the complainant, the fact that she was, on the night preceding 2/3 months to the lodging of the FIR, subjected to forcible sexual intercourse by the bail applicant, besides, when even at that stage, the aunt of the prosecutrix omitted to hand over to the police the torn clothes of the prosecutrix connotative of the factum of hers having been subjected to forcible sexual intercourse does foment a conclusion that the subsequent version as narrated by the prosecutrix in her statement recorded under Section 164 Cr.P.C is wholly engineered as well as contrived. It naturally appears that given for the pre-eminent reasons aforesaid, the narration qua the incident comprised in the F.I.R. being tainted, the complainant to camouflage the lapses and shortcomings existing therein contrived to tutor the prosecutrix to make a statement before the Judicial Magistrate under Section 164 Cr.P.C. In sequel, a tutored version of the prosecutrix made at the behest of her mother cannot prima facie acquire any hue of truth. Aggravation to the aforesaid inference is embedded in the fact of the aunt of the prosecutrix having handed over the torn clothes of the prosecutrix to the police belatedly on 19.5.2015, therefore when not only an immense delay has occurred in the prevaricated attribution of an inculpatory role to the bail applicant, the belated handing over of the torn clothes of the prosecutrix by her aunt to the IO, does also smother the effect of the explanation afforded by the complainant for the belated lodging of FIR in as much as of the prosecutrix having out of fear omitted to disclose the truth qua the occurrence. Besides the torn clothes of the prosecutrix which were noticeable even when the alleged occurrence took place ought to have then prodded the complainant to perceive the truth besides discard her explanation of hers having stayed overnight with one Surto Devi, hence, ought to have then proceeded to lodge an F.I.R. yet she omitted to do so. Her omission to do so spurs an inference that hence the incident as alleged did not occur. Her omission to do so spurs an inference that hence the incident as alleged did not occur. In case the aunt of the prosecutrix could subsequent to the lodging of the F.I.R., on 19.5.2015 produce the torn clothes of the prosecutrix, yet omitted to produce them earlier if available, the omission of their production at the earliest, belies the version qua the occurrence as spelt out by the complainant. Necessarily then, the apt conclusion is that the belated production of torn clothes of the prosecutrix by her aunt is also to be construed to be a concerted endeavour on the part of the complainant to manufacture or concoct a tainted version qua the incident. The bail applicant hence can be concluded to have prima-facie not committed any offence under Section 376 & 506 of I.P.C, therefore, it would be inappropriate to prolong his judicial custody any longer as it would unnecessarily curtail and fetter his liberty. 4. Further it appears that the offences constituted under Section 3(i), (xi), (xii) of SC &ST against the accused are without application of mind and merely on the strength of the prosecutrix being a minor and hers belonging to the SC community. However, when the discussion herein above displays that no prima facie offence is constituted against the bail applicant under Sections 376 & 506 of Indian Penal Code, in face thereof prima-facie concomitantly no offence under Sections 3(i), (xi), (xii) of SC & ST Act is constituted against the bail applicant. 5. Moreover, when at this stage no material has been placed on record by the prosecution demonstrating that in the event of bail being granted to the bail petitioner, there is every likelihood of his fleeing from justice or tampering with prosecution evidence, this Court is constrained to afford the facility of bail in favour of the bail petitioner. Accordingly, the bail applicant is ordered to be released on bail from judicial custody, subject to compliance by him with the following conditions:- (1). That he shall furnish personal and surety bonds in the sum of Rs. 50,000/- each, to the satisfaction of Chief Judicial Magistrate, Nahan. (2). That he shall join the investigation, as and when required by the Investigating agency. (3). That he shall furnish personal and surety bonds in the sum of Rs. 50,000/- each, to the satisfaction of Chief Judicial Magistrate, Nahan. (2). That he shall join the investigation, as and when required by the Investigating agency. (3). That he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police. (4). That he shall not leave India without the prior permission of the Court. (5). That he shall deposit his passports, if any, with the Police Station, concerned. (6). That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody. 6. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.