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2017 DIGILAW 1234 (HP)

Ankush alias Shivam v. State of Himachal Pradesh

2017-11-07

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 97 of 2016, dated 18.05.2016, under Section 376 of Indian Penal Code (hereinafter referred to as “IPC”) registered at Police Station Sadar, District Solan, H.P. 2. As per the petitioner, he is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. 3. Police report stands filed. As per the prosecution, on 18.05.2016, the prosecutrix, by moving a complaint to the police, alleged that in the year 2015 she used to work in Shoolni Packaging where the petitioner also used to work and they were friends. On 17th August, 2015, the petitioner took the prosecutrix to the room of his friend and he had sexual intercourse with her on the pretext of marrying her. Thereafter, the petitioner many times sexually assaulted the prosecutrix on the pretext of marrying her. On 20th February, 2016, the petitioner took the prosecutrix to Anand Hotel and there also he sexually assaulted her. As per the prosecutrix, after winding up of Shoolni Packaging the petitioner went to Noida in search of work and they used to talk on phone, however, now the petitioner is refusing to marry her. On the basis of the complaint of the prosecutrix, police machinery was set into motion and an FIR was registered against the petitioner. Spot map was prepared and the statements of the witnesses were recorded. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C. and the petitioner was arrested on 21.05.2016. The prosecutrix and the petitioner were medically examined. Report from State Forensic Science Laboratory was also obtained and the final report of doctor is that the possibility of sexual abuse can not be ruled out. During the course of investigation, it was also unearthed that the prosecutrix became pregnant and she also attempted suicide. As per the prosecution, the challan stands presented in the Court and next date of hearing is 21.12.2017. Lastly, it has been prayed that the bail application of the petitioner may be dismissed. 4. Heard. During the course of investigation, it was also unearthed that the prosecutrix became pregnant and she also attempted suicide. As per the prosecution, the challan stands presented in the Court and next date of hearing is 21.12.2017. Lastly, it has been prayed that the bail application of the petitioner may be dismissed. 4. Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that the prosecutrix was four years elder to the petitioner. The petitioner was just 19 years of age when the offence is alleged to have committed. As per the learned counsel for the petitioner, the only case is that the petitioner was seen by the prosecutrix chatting with another girl on facebook and this is the reason that she lodged the FIR against the petitioner. He has stated that the petitioner is totally innocent and he may be released on bail, as he has already behind the bars since long. He has further argued that the petitioner is not in a position to tamper with the prosecution evidence, as sufficient evidence, including the prosecutrix, stands already examined. Conversely, Law Officer, appearing for the respondent/State has argued that taking into consideration the seriousness of the case, the bail application, so maintained by the petitioner, may be dismissed. 5. I have gone through the rival contentions of the parties and the police report in detail. 6. At this stage taking into consideration the facts that the petitioner is behind the bars for the last more than two years, he is a young man going through the agony of remaining behind the bars, he is not in a position to tamper with the prosecution evidence and also not in a position to flee from justice, this Court finds that the petitioner cannot be kept behind the bars for an unlimited period before he being adjudicated guilty. Therefore, keeping in view the material, which has come on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Therefore, keeping in view the material, which has come on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the present petition is allowed and it is ordered that the petitioner, who has been arrested by the police of Police Station Sadar, Solan, District Solan, H.P. in connection with FIR No. 97 of 2016, dated 18.05.2016, under Section 376 IPC, Police Station, Sadar, District Solan, H.P. he shall be released on bail forthwith, subject to his furnishing personal bond in the sum of Rs. 25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will 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/her from disclosing such facts to the Investigating Officer or Court. 7. In view of the above, the petition is disposed of.