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Himachal Pradesh High Court · body

2019 DIGILAW 1556 (HP)

Anuj v. State Of Himachal Pradesh

2019-10-21

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. 14 of 2019, dated 12.03.2019, under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act, registered in Police Station Nirmand, District Kullu, 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 12.03.2019 Shri Shayam Lal (complainant) made a complaint to the police and alleged that on 11.03.2019, at about 09:00 p.m., the prosecutrix (name withheld), who is his daughter, went missing. Despite best efforts, she could not be traced. As per the complainant, the prosecutrix is 16 years old. Upon the complaint, so made by the complainant, police registered a case and the investigation ensued. The call details of the mobile, which the prosecutrix was having, were obtained and location of the prosecutrix was traced. On 15.03.2019 the prosecutrix was found at Bhadol bus stand and the complainant identified her. The prosecutrix was medically examined and the doctor preserved samples. Statement of the prosecutrix was recorded under Section 161 Cr.P.C. Police procured the records qua the date of birth of the prosecutrix and she was found to be 15 years and 11 months of age. On 18.03.2019 the statement of the prosecutrix was recorded under Section 164 Cr.P.C.. On 21.03.2019 the petitioner was arrested and was medically examined. During the course of investigation, it has come that on 23.03.2019 the petitioner committed sexual intercourse with the prosecutrix in a room of Sun-N-Snow hotel at Shimla. Upon the identification of the prosecutrix, police made relevant recoveries from the hotel and also seized the relevant records. As per the medical opinion, the prosecutrix was subjected to sexual assault. On 03.06.2019, after completion of investigation, police presented the challan in the Court and eight witnesses have been examined. Upon the identification of the prosecutrix, police made relevant recoveries from the hotel and also seized the relevant records. As per the medical opinion, the prosecutrix was subjected to sexual assault. On 03.06.2019, after completion of investigation, police presented the challan in the Court and eight witnesses have been examined. As per the police, now four more witnesses, including the prosecutrix, are to be examined and the case is listed for their evidence on 04.11.2019. Report of DNA profiling is awaited. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a heinous offence. In case the petitioner is enlarged on bail, at this stage, he may tamper with the prosecution evidence and may also flee from justice, so the bail application of the petitioner 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 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 petition may be allowed and the petitioner may be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a heinous crime and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, so it is prayed that the bail application of the petitioner may 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 challan stands presented in the Court and eight prosecution witnesses have been examined, so the application be allowed and the petitioner be enlarged on bail. 7. 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 challan stands presented in the Court and eight prosecution witnesses have been examined, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner as well as of the prosecutrix, the manner in which the offence is alleged to have been committed, the fact that challan stands presented in the Court and prosecution has examined eight witnesses, 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, considering the medical evidence and the overall material, which has come on record, and without discussing the same at this stage, the petitioner is ready and willing to abide by the terms and conditions of bail, in case so granted, 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. 14 of 2019, dated 12.03.2019, under Sections 363, 366A, 376 IPC and Section 4 of POCSO Act, registered in Police Station Nirmand, District Kullu, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five 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.