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2018 DIGILAW 1731 (HP)

Arun Kumar v. State of Himachal Pradesh

2018-09-26

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present bail application has been moved by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 72 of 2017, dated 29.07.2017, under Sections 376, 342, 506, 109, 120B IPC read with Section 34 IPC and Sections 4 and 17 of POSCO Act, registered in Police Station Talai, District Bilaspur, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he be released on bail. 3. Police report stands filed. As per the prosecution story on 29.07.2017, the mother of the prosecutrix lodged a complaint with the police alleging that her daughter, prosecutrix (name withheld), who studies in college, as per her daily routine, on 29.07.2017 started to college at about 08:00 a.m. The complainant has further alleged that in the evening the prosecutrix was sleeping and on the asking of the complainant, she started weeping and divulged that she has been sexually assaulted by the petitioner. The prosecutrix disclosed to her mother that today when she alongwith her friend, Madhu, was at Barthi Chowk, uncle of Madhu (petitioner) gave them lift in his Nano car. The prosecutrix further divulged to the complainant that one lady alongwith a baby was sitting on the front passenger seat. However, subsequently that lady came to the rear passenger seat and the prosecutrix sat on the front passenger seat. The friend of the prosecutrix alighted at Jhanduta College and when she tried to alight, the petitioner did not allow her and hurriedly drove the vehicle towards the house of lady, who was sitting in the vehicle. Later on, the lady sitting in the car told the prosecutrix to come on the rear seat and that lady alighted from the vehicle at Kaasru and on being asked, the prosecutrix accompanied her to her home, as she wanted to collect some material from her home. The petitioner also started walking behind them. Later on, the lady sitting in the car told the prosecutrix to come on the rear seat and that lady alighted from the vehicle at Kaasru and on being asked, the prosecutrix accompanied her to her home, as she wanted to collect some material from her home. The petitioner also started walking behind them. When the prosecutrix and the petitioner were inside a room, the lady closed the door of the room and the petitioner, after bolting the door of the room from inside, forcibly committed sexual intercourse with her and also threatened her to do away with her life in case she raises any hue and cry. The petitioner tied her hands with her dupatta and also gagged her mouth. When the prosecutrix shouted, the petitioner increased the volume of the music system. Later on, when the prosecutrix came out of the room, that lady was cutting grass nearby. The petitioner took the prosecutrix to Barthi and there he made her to alight. On the anvil of the complaint, so made by the complainant, a case was registered against the petitioner and the investigation ensued. The prosecutrix was medically examined and as per the medical opinion sexual intercourse was not ruled out. The petitioner was arrested and the statements of the witnesses were recorded. Police prepared the spot map. Statement of the prosecutrix was also recorded under Section 164 Cr.P.C. The petitioner got recovered a used condom. As per the final medical opinion, considering unmarried status torn hymen and well heated tag of hymen alongwith presence of seminal stain on vaginal slide, recent sexual intercourse has taken place. As per the prosecution, the challan stands presented in the Court and the statements of the witnesses have been recorded. Lastly, the prosecution has prayed that the bail application be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner is behind the bars since long and nothing has come against him in the testimonies of the prosecution witnesses, so he be released on bail. 5. The learned Counsel for the petitioner has argued that the petitioner is behind the bars since long and nothing has come against him in the testimonies of the prosecution witnesses, so he be released on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious office and taking into consideration the medical report, which portrays that the hymen of the prosecutrix was found torn and also considering the manner in which the petitioner perpetrated the crime, the bail application be dismissed. 6. At this stage, considering overall aspects of the case, as emanating from the records, alongwith the fact that the only a witness remains to be examined by the learned Trial Court, considering the age of the petitioner as also the prosecutrix and the manner in which the crime is alleged to have been committed by the petitioner, this Court finds that present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. 7. In view of the above, the petition sans merits, deserves dismissed and is accordingly dismissed.