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Himachal Pradesh High Court · body

2019 DIGILAW 1458 (HP)

Dev Raj v. State of Himachal Pradesh

2019-09-27

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application under Section 439 of the Code of Criminal Procedure has been maintained by the petitioner, for releasing him on bail, in case FIR No.74/2018, dated 11.10.2018, under Sections 376 and 506 of the Indian Penal Code (for short "IPC") and Section 4 of Protection of Children from Sexual Offences (for short "POCSO") Act, registered at Police Station Sangrah, District Sirmaur, 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 may be released on bail. 3. Police report stands filed. As per the prosecution story, on 11.10.2018, the prosecutrix (name withheld) lodged a complaint with the police, alleging therein that on 10.10.2018, at about 2:00 (midnight), when she went outside from her house to answer the call of nature, the accused, who was known to her, made a telephone call to her and asked her to meet him. When she refused to do so, the accused, who was hiding himself nearby, gagged her mouth and forcibly took her to the bushes and committed rape with her. After committing the rape the accused ran away from the spot. Consequently, FIR No. 74/2018, dated 11.10.2018, under Sections 376 and 506 IPC and Section 4 of POCSO Act, came to be registered against the petitioner. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner is innocent and he is 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 from last one year and since the investigation is complete and challan has been presented in the learned trial Court, the petitioner may be released on bail. Conversely, learned Additional Advocate General, has argued that the petitioner was found involved in a serious offence and at this stage, he may not be released on bail and his bail application be dismissed. 6. Heard. Conversely, learned Additional Advocate General, has argued that the petitioner was found involved in a serious offence and at this stage, he may not be released on bail and his bail application be dismissed. 6. Heard. Taking into consideration the facts of the present case, i.e. factum of having telephone with the prosecutrix, SIM Card of which was given to the prosecutrix by the petitioner, lodging of the FIR as well as the way the incident has been reported, coupled with the fact that the accused is 23 years of age and also that the petitioner and the prosecutrix are known to each other, this Court finds that judicial discretion to admit the petitioner on bail is required to be exercised in his favour, since he is behind the Bars from last one year and neither in a position to tamper with the prosecution evidence nor to flee from justice, as the investigation is complete and challan has been presented in the trial Court. Further, the petitioner cannot be kept behind the bars for an unlimited period. So, taking into consideration the age of the petitioner and considering the overall aspects of the case, it is ordered that the petitioner be released on bail, in case FIR No.74/2018, dated 11.10.2018, under Sections 376 and 506 IPC and Section 4 of POCSO Act, registered at Police Station Sangrah, District Sirmaur, H.P., on his furnishing personal bond to the tune of Rs.20,000/- (rupees twenty thousand) with one surety in the like amount to the satisfaction of 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. 7. In view of the above, the petition is disposed of.