Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1680 (HP)

Amar Singh v. State of H. P.

2018-09-17

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. 1. The instant petition, has been filed by applicant/accused, under Section 439, Code of Criminal Procedure, for seeking, an order, for his being released from judicial custody, whereat he is extantly lodged, for, his allegedly committing an offence, punishable under Sections 376, 342 of the Indian Penal Code, in respect whereof, an FIR No. 144 of 2018, of, 24.5.2018, is, registered with Police Station, Sadar Solan, District Solan, H.P. 2. The accused is suffering judicial incarceration, for, four months. The prosecutrix/victim is a married lady and has two minor children. She is deaf and dumb. However, the apt status report discloses qua hers not lacking, the, capacity hence for making an apt communication to her husband or to other members of her matrimonial home. Contrarily, it is manifest, from, a perusal of the status report, that, she could make communications, through, gestures and by using sign language, and, there is also disclosure therein, that, her apt communications, through, gestures and sign language, were understandable by the members, of her matrimonial home. The effect of the aforesaid, is, that the prosecutrix rather cannot be construed to lack the capacity to mete consent, if any, vis-a-vis perpetration, of sexual intercourse upon her, by the bail applicant/accused. If so, she was enjoined, to, promptly report the incident, to, the police. However, the apt status report discloses qua about 21 days rather elapsing, since the occurrence, upto hers’ making apt communications, to her mother-in-law. Even though she in her statement recorded, under, Section 164 Cr.P.C. she makes echoings, qua, her within two days, since the occurrence rather reporting the incident to her mother-in-law, yet, the afore contradictions rather constrains this Court, to conclude, that, there is a manifest delay, in, the reporting, of, the incident to the police. Neither the mother-in-law of the prosecutrix nor the latter has meted any tangible explications qua the apt delay. Neither the mother-in-law of the prosecutrix nor the latter has meted any tangible explications qua the apt delay. The effect thereof is (i) qua hence the emergence of apt medical evidence being precluded, (b) nor hence evidence is forthcoming qua bruises and abrasions rather occurring on the person of the bail applicant/accused or upon the person of the prosecutrix/victim, with any vivid display qua whether prosecutrix had or not resisted, the, sexual intercourses perpetrated upon her, by the bail applicant/ accused, (ii) thereupon at this stage, it cannot be firmly concluded qua the sexual intercourse, which occurred interse the bail applicant/accused, and, the prosecutrix being construable to be a forcible sexual intercourse. Corollary thereof is hence, the apt benefit at this stage, is visitable, upon, the bail applicant/accused qua his rather with the consent of the prosecutrix, hence sexually accessing the victim. 3. Be that as it may, the prosecutrix, at, the end of her statement, recorded under Section 164 Cr.P.C. has, made acquiescences qua her forgiving, the, misdemeanor of the accused, acquiescence's whereof , is, rather tentatively and prima-facie may be readable qua hers consenting, vis-a-vis the bail applicant hence sexually accessing her. 4. Bearing in mind the aforesaid factum, this Court deems it fit and appropriate, importantly, when the Investigating Officer has reported that the bail petitioner, has throughout associated, hence, in the relevant investigation, to, hence afford, the facility of bail in favour of the bail applicant/petitioner. Moreso, when at this stage, no evidence has been adduced by the prosecution, demonstrating, that in the event of bail being granted to the bail applicant/petitioner, there being every likelihood of his fleeing from justice or tampering with prosecution evidence, Accordingly, the indulgence of bail, is, granted to the bail applicant/petitioner, on, the following conditions: (i) That he shall furnish personal bond, comprised in a sum of Rs. 1,00,000/- with one surety in the like amount, to the satisfaction of the learned trial Court. (ii) That he 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 the Police. (iv) That he shall not leave India without the previous permission of the Court. (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 the Police. (iv) That he shall not leave India without the previous permission of the Court. (v) That he shall deposit his passport, if any, with the Police Station, concerned. (vi) 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. 5. In view of above, petition stand disposed of. 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.