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2018 DIGILAW 1302 (HP)

Roop Dutt Sharma v. State Of H. P.

2018-07-13

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - The bail applicant, is, suffering judicial incarceration, for, his allegedly committing offences constituted under Sections 363, 366, and, Section 376 of the IPC, and, for his allegedly committing offences, embodied in Sections 4, 7 and 16 of the POCSO Act, in respect whereo, FIR No. 7 of 2018 of 8.02.2018, is lodged with Women Police Station, Baddi. 2. The prosecutrix, has, solemnised marriage with the bail applicant, and, in her sworn affidavit, she has made a disclosure qua hers, at the relevant time, being a major. The marriage certificate, qua the solemnisation, of, marriage inter se the bail applicant, and, the prosecutrix also elborates therein qua the prosecutrix, at the relevant time, being, a, major. However, in case, the aforesaid material is imputed sanctity, thereupon, the offences allegedly committed by the bail application, would prima facie, be hence construable to be with the consent of the prosecutrix, (I) dehors, in her statement, recorded, under Section 164 of the Cr.P.C., before the learned Judicial Magistrate concerned, she ascribes, vis-a-vis, the bail applicant, an, incriminatory role, qua his, on, 8.02.2018, subjecting her, to, forcible sexual intercourse. 3. However, before proceeding to mete credence, to the aforesaid disclosures, unfolded, in the affidavit sworn, by the prosecutrix, and, in the apt marriage certificate, (a) it is necessary, to, bear in mind, the further factum of the MLC, appertaining, to the prosecutrix, contrarily unfolding therein, qua the prosecutrix being aged 15 years, and, also the school leaving certificate, appertaining to the prosecution, also, alike therewith unraveling, qua the prosecutrix, at the relevant time, being a minor. 4. In summa, the comparative worth, of, the aforesaid material, is, enjoined to be determined. In the apt MLC, though the prosecutrix, is, delineated therein, to be, at the relevant time, hence a minor, yet for the aforesaid reflections, to, carry vigour, (a) it stood enjoined, upon, the doctor concerned, to ensure hers appending, her signatures or thumb impression thereon, (b) whereas, with the apt MLC, neither carring the signatures of the prosecutrix, nor with her thumb impressions, standing embossed thereon. (c) Contrarily, with, the thumb impression(s) of her mother, standing, embossed thereon, (d) thereupon, it is to be invincibly, concluded, qua the delineations borne therein, qua the prosecutrix, at the relevant time, being a minor, not, prima facie, carrying any solemnity or gravity. (c) Contrarily, with, the thumb impression(s) of her mother, standing, embossed thereon, (d) thereupon, it is to be invincibly, concluded, qua the delineations borne therein, qua the prosecutrix, at the relevant time, being a minor, not, prima facie, carrying any solemnity or gravity. More so, when the mother, of, the prosecutrix has therein revealed, her willingness, for her minor daughter undergoing, a, radiological test, for, her radiological age hence being determined. (i) Willingness whereof, would not, emanates unless, she is unsure about the exact date of birth of her daughter. Furthermore, though, the school leaving certificate also unravels qua the prosecutrix, at the relevant time, being a minor, yet, thereupon, too, no prima facie sanctity, is to be imputed, (a) given, the Investigating Officer, not, collecting from the quarters concerned, the, birth certificate of the minor prosecutrix, whereas, the birth certificate, alone, given its solitarily comprising the best evidence qua the relevant fact, would hence constrain this Court to mete authenticity, vis-a-vis, the reflections qua the date, of, birth of the prosecutrix, as borne, in her school leaving certificate. Contrarily, want of existence, on, record of the birth certificate of the prosecutrix, as, maintained with the offices concerned, does prima facie, bely her age, as, borne in the apt school leaving certificate, rather, the, reflections borne in the school leaving certificate qua the prosecutrix, at the relevant time, being a minor, are, to be construed to be sumisally and conjecturely made, whereupon, hence no reliance can be imputed. 5. Consequently, lack of firm, and, apposite best documentary material on record, displaying, qua the prosecutrix, at the relevant time, being a minor, rather when the mother of the prosecutrix, has evinced in the apposite MLC, hence her willingness, qua, the prosecutrix undergoing, the, radiological test, (i) hence, rears a formidable conclusion qua an aura of uncertainty, hence, existing, even in the mind of the mother, of, the prosecutrix, vis-a-vis, the exact date of birth, of, the prosecutrix, (ii) whereupon, it is to be concluded qua the prosecutrix being, a major, at the relevant time. In aftermath, even if, she in her statement recorded, under Section 164 of the Cr.P.C., hence attributes an incriminatory role, vis-a-vis, the bail applicant, yet with hers thereafter, solemnising, a, valid marriage, with the accused, thereupon, it is to be concluded, that, the aforesaid ascribed penal misdemeanors, prima facie, at this stage, hence fading into insignificance. In aftermath, even if, she in her statement recorded, under Section 164 of the Cr.P.C., hence attributes an incriminatory role, vis-a-vis, the bail applicant, yet with hers thereafter, solemnising, a, valid marriage, with the accused, thereupon, it is to be concluded, that, the aforesaid ascribed penal misdemeanors, prima facie, at this stage, hence fading into insignificance. Moreover, with the State not bringing on record, any material displaying that in the event of bail applicant being released on bail, there is any likelihood of his fleeing from justice or tampering with the prosecution evidence, further constrains this Court to accord the facility of bail to the bail applicant. Consequently, the present bail application is allowed and the indulgence of bail is granted to the bail applicant subject to compliance of the following conditions:- (i) that the bail applicant shall furnish personal bond in the sum of Rs. 50,000/- with two local sureties in the like amount to the satisfaction of the learned Addl. Chief Judicial Magistrate, Nalagarh (ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency; (iii) 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 any police officer; (iv) that he shall not leave India without the prior permission of the Court ; (v) that he shall deposit his passport(s), if any, with the SHO, Police Station concerned; 6. With the aforesaid observations the present petition stand disposed of. It is, however, made clear that the findings recorded hereinabove shall have no bearings on the merits of the case. Dasti Copy.