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Himachal Pradesh High Court · body

2019 DIGILAW 1568 (HP)

Sheshav Kumar v. State Of Himachal Pradesh

2019-10-23

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. 8 of 2019, dated 12.01.2019, under Sections 376 and 506 IPC and Section 4 of POCSO Act, registered in Police Station Nagrota Bagwan, District Kangra, 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 in Child Reform Centre for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 12.01.2019 mother of the prosecutrix (name withheld) made a written complaint to the police and alleged that she has two daughters. On 07.01.2019 the petitioner, who is their neighbour, came to their house on the occasion of birthday of the prosecutrix (name withheld), who is her elder daughter. As per the complainant, the petitioner took the prosecutrix in a bath room and inserted his finger in the private part of the prosecutrix. The petitioner also threatened the prosecutrix. Due to fear, the prosecutrix did not divulge the incident and only on 11.01.2019 the prosecutrix disclosed the incident to her naani, in turn the complainant was disclosed qua the incident and she disclosed the incident to her husband. Upon the complaint, so made by the complainant, police registered a case and the investigation ensued. The prosecutrix was medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Upon the identification of the prosecutrix, police prepared the spot map and recorded the statements of the witnesses. Police obtained records qua the date of birth and caste of the prosecutrix. The petitioner was medically examined and as the petitioner was juvenile, he was sent to Child Reform Centre, Una. The prosecutrix was found to be minor. As per the final medical opinion, it could not be said whether penetration assault occurred or not. As per the police, on 11.03.2019 challan was presented in the learned Trial Court and now the case is listed for 02.11.2019. The prosecutrix was found to be minor. As per the final medical opinion, it could not be said whether penetration assault occurred or not. As per the police, on 11.03.2019 challan was presented in the learned Trial Court and now the case is listed for 02.11.2019. Lastly, it is prayed that at this stage the bail application of the petitioner may be dismissed, as the petitioner has committed a heinous crime and in case he is enlarged on bail, at this stage, he may tamper with the prosecution evidence and may also flee from justice. 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. She has further argued that the petitioner is 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 the petitioner in Child Reform Centre for an unlimited period, especially when challan is presented in the Court and as per the medical evidence no proof of penetrative sexual assault was found. She has further argued that keeping in view the age of the petitioner and all the other facts and circumstances the bail application be allowed and the petitioner be released from Child Reform Centre and entrusted in the custody of either his father or mother. 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 released, 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 in custody for an unlimited period, so the application be allowed and the petitioner be enlarged on bail. 7. 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 in custody for an unlimited period, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, after taking into consideration the age of the petitioner and that of the prosecutrix, the manner in which the offence is alleged to have been committed, the medical evidence, which does not demonstrate that the any penetrative sexual assault took place, the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is resident of the place and also 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 in custody 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 kept in Child Reform Centre, Una, in case FIR No. 8 of 2019, dated 12.01.2019, under Sections 376 and 506 IPC and Section 4 of POCSO Act, registered in Police Station Nagrota Bagwan, District Kangra, H.P., be entrusted in the custody of either his father or mother subject to any of them furnishing bail bond in the sum of Rs. 10,000/- (rupees ten thousand) with one surety in the like amount to the satisfaction of the learned Juvenile Court/Board and with an undertaking by them that either of them will make the petitioner to appear before the learned Juvenile Court/Board, Police/authorities as and when required and further undertaking that the petitioner will not tamper with the prosecution evidence or flee from justice. 8. In view of the above, the petition is disposed of.