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2019 DIGILAW 1237 (HP)

Rajesh Kumar v. State Of Himachal Pradesh

2019-08-28

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 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. 22 of 2018, dated 31.01.2018, under Sections 376(2)(F), 341 and 506 IPC, registered in Police Station Ghumarwin, 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 Hamirpur, Himachal Pradesh, 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 31.01.2018 the prosecutrix (name withheld) made a complaint to the police, wherein she contended that she came to Rally Jajri, Punjab, to meet his aunt (bua) and while returning, when she did not find bus, petitioner, who is her jija, told to drop her in his alto car. The prosecutrix agreed and boarded the vehicle of the petitioner and en route the petitioner stopped his vehicle at Ghumarwin, Gagan Hotel, for lunch, where he had already booked a room. In the hotel when no one was present, the petitioner started indecently touching her, so the prosecutrix ran towards the vehicle and sat inside. The petitioner came inside the vehicle and again started touching private parts of the prosecutrix. When the prosecutrix started raising hue and cry, the petitioner drove the vehicle and stopped the same in a secluded jungle. The petitioner clicked some photographs from his mobile camera and threatened her that in case she divulges the incident to anyone he will tarnish her reputation. On the basis of the complaint, so made by the prosecutrix, police registered a case and the investigation ensued. The prosecutrix was medically examined. On 31.01.2018 the petitioner was arrested and medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. On the identification of the prosecutrix, police prepared the spot map and on the disclosure statement of the petitioner police went to Hotel Gagan. Records from the hotel were also procured by the police and it was unearthed that for 29.01.2018 he had booked a room. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. On the identification of the prosecutrix, police prepared the spot map and on the disclosure statement of the petitioner police went to Hotel Gagan. Records from the hotel were also procured by the police and it was unearthed that for 29.01.2018 he had booked a room. Police also seized the vehicle, having registration No. HP14A-4594, which was allegedly used by the petitioner. During the course of investigation, it was also unearthed that the petitioner is habitual offender and many cases have been registered against him under different sections. Police also collected the scientific samples, which were sent for forensic analysis to SFSL, Junga. As per the medical opinion, there is nothing to suggest that an intercourse had happened. Police presented the challan in the learned Trial Court and now the case is listed for prosecution evidence on 31.08.2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence and he is very clever person. In case the petitioner is enlarged on bail, at this stage, there is possibility that he may flee from justice or tamper with the prosecution evidence. 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 reports, carefully. 5. The learned 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 Hamirpur, Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that the petitioner is behind the bars for the last 19 months and no fruitful purpose will be served by keeping him behind the bars for an unlimited period. He has argued that even as per the statement of the prosecutrix, recorded under Section 164 Cr.P.C. before the Court, no case is made out under Section 376 IPC. The custody of the petitioner is not at all required by the police, investigation is complete and now the case is listed for examination of prosecution witnesses, so the bail application be allowed and the petitioner be enlarged on bail. The custody of the petitioner is not at all required by the police, investigation is complete and now the case is listed for examination of prosecution witnesses, 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. He is very clever person and many cases have been registered against him, 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 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 31.08.2019, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner, the fact that he is behind the bars for the last 19 months, the manner in which the offence is alleged to have taken place, the statement of the prosecutrix recorded before the Court, the fact that the petitioner is permanent resident of Hamirpur, Himachal Pradesh, and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice and also considering the overall facts, which have come on record, and without discussing the same at this stage, 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. 22 of 2018, dated 31.01.2018, under Sections 376(2)(F), 341 and 506 IPC, registered in Police Station Ghumarwin, District Bilaspur, 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. 9. The observations made hereinabove shall not be construed as an opinion expressed on the merits of the case and the same shall be adjudged on its own.