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2019 DIGILAW 1877 (HP)

Vinyamin @ Fauji v. State Of Himachal Pradesh

2019-12-09

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. 25 of 2017, dated 02.06.2017, under Sections 363, 366(A), 372, 376, 506 IPC and Section 4 of POCSO Act, registered in Police Station Nerwa, District Shimla, 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 permanent 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 02.06.2017 the prosecutrix (name withheld), a minor, made a written complaint to the police and alleged that she is youngest sister amongst her siblings and her father has died about six years back. As per the prosecutrix, she left the school after 5th standard and her mother remarried. She and her siblings are being raised by her uncle (Taya) and the petitioner is their neighbour. The petitioner used to tell the prosecutrix time and again that he will take her to Kidhrabad, where her sister has been married. During October, 2016, the petitioner took the prosecutrix in a vehicle from Nerwa and sold her for Rs. 26,000/- to a person at Serpul. Later on, she came to know that she has been sold to Bir Singh (co-accused), resident of Vikasnagar, Dehradun. On the same night co-accused Bir Singh sexually molested her and he started molesting her again and again. Co-accused Bir Singh also threatened her. On 01.06.2017 the prosecutrix escaped and somehow managed to reach Teuni and as co-accused Bir Singh was searching her, she hide herself in a house and on 02.06.2017 she reached Aatal. At Aatal she met her uncle (mama) to whom she narrated the facts. Thereafter, she lodged a complaint with the police. Upon the complaint, so made by the prosecutrix, police registered a case and the investigation ensued. The prosecutrix was medically examined and the Medical Officer did not rule out possibility of recent sexual intercourse. The petitioner and the co-accused were arrested and medically examined. Police made the relevant recoveries. Thereafter, she lodged a complaint with the police. Upon the complaint, so made by the prosecutrix, police registered a case and the investigation ensued. The prosecutrix was medically examined and the Medical Officer did not rule out possibility of recent sexual intercourse. The petitioner and the co-accused were arrested and medically examined. Police made the relevant recoveries. Statements of the witnesses were recorded and spot map was prepared. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. and record qua her date of birth of was obtained. After completion of investigation, challan was presented in the learned trial Court on 29.08.2017. As per the police, scientific evidence clearly proves that co-accused sexually molested the prosecutrix and till now 17 witnesses have been examined and 5 witnesses are yet to be examined. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a serious crime. 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, as he is behind the bars for the last more than two years. He has further argued that challan stands presented in the Court and 17 witnesses have already been examined and only some of the witnesses remain to be examined, so the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious 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. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious 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 investigation is complete, challan stands presented in the Court and in the wake of the role of the petitioner in the alleged offence and the fact that the petitioner is behind the bars for the last more than two years, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner, who is only 26 years of age, the fact that the petitioner he is behind the bars for more than two years and cannot be kept behind the bars for an unlimited period, considering the testimony of the prosecutrix, who, as per the learned counsel for the petitioner, has turned hostile before the learned Trial Court, the role of the petitioner and the manner in which he is alleged to have committed the offences, the petitioner 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, the fact that now only five witnesses are to be examined and seventeen witnesses have already been examined, considering 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, 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. 25 of 2017, dated 02.06.2017, under Sections 363, 366(A), 372, 376, 506 IPC and Section 4 of POCSO Act, registered in Police Station Nerwa, District Shimla, 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. Copy dasti.