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2019 DIGILAW 1082 (HP)

Raj Kumar v. State of Himachal Pradesh

2019-08-02

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. 329 of 2018, dated 12.12.2018, under Sections 363, 366A, 323, 504, 509 IPC and Section 4 of POCSO Act, registered in Police Station Sadar, Chamba, District Chamba, 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. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 12.12.2018, complainant, grand-mother of the prosecutrix, made a complaint to the police and alleged that her daughter, who is widow, has two minor children, i.e. one son and one daughter (prosecutrix). As per the complainant, on 08.12.2018, her daughter alongwith her son went to Tanda Hospital for medical treatment. On 12.12.2018 the petitioner came to their house and told the complainant that her daughter (mother of the prosecutrix) is very ill and he asked the complainant to take the prosecutrix to her mother in the hospital alongwith his wife. At about 11 p.m. when the complainant telephonically contacted her daughter, she informed that the prosecutrix did not come to her. The complainant raised a suspicion that the petitioner took the prosecutrix, so she made the complaint. Acting upon the complaint, so made by the complainant, police registered a case and investigation ensued. On 12.12.2018 the police traced the prosecutrix in a hotel of Banikhet. Her statement under Section 161 Cr.P.C. was recorded and she was medically examined. On 12.12.2018 the petitioner was arrested and he was medically examined. Police procured the records qua the date of birth of the prosecutrix. Police also made relevant recoveries. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. Police prepared the spot map and recorded the statements of the witnesses. Scientific samples were lifted and sent to RFSL, Dhamashala for analysis. As per the medical evidence, there was evidence of recent sexual intercourse. Police also made relevant recoveries. The statement of the prosecutrix was also recorded under Section 164 Cr.P.C. Police prepared the spot map and recorded the statements of the witnesses. Scientific samples were lifted and sent to RFSL, Dhamashala for analysis. As per the medical evidence, there was evidence of recent sexual intercourse. Challan stands presented in the Court and now the case is listed for prosecution evidence on 08.08.2019 and 09.08.2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence and there is possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper with the prosecution evidence. 4. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police reports, carefully. 5. The learned Senior Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, so the bail application be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 6. In rebuttal the learned Senior Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when the investigation is complete, challan stands presented in the Court and now the case is listed for prosecution witnesses on 08.08.2019 and 09.08.2019, so the application be allowed and the petitioner be enlarged on bail. 7. 7. At this stage, considering the facts that the prosecutrix did not support the prosecution case in the Court, FSL report, the age of the petitioner, the fact that he is behind the bars for considerable time, he is permanent resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, considering the overall facts, which have come on record, and without discussing the same at this stage and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so 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 petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 329 of 2018, dated 12.12.2018, under Sections 363, 366A, 323, 504, 509 IPC and Section 4 of POCSO Act, registered in Police Station Sadar, Chamba, District Chamba, H.P. shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs. 50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities 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. 8. In view of the above, the petition is disposed of.