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Himachal Pradesh High Court · body

2019 DIGILAW 870 (HP)

Satish Kumar v. State Of Himachal Pradesh

2019-07-05

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. 64 of 2018, dated 30.08.2018, under Sections 363, 366A, 376D, 506 IPC and Section 6 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 30.08.2018, the complainant, father of the prosecutrix (name withheld) reported to the police that on 27.08.2018, at about 12:00 noon, the prosecutrix came to Nirmand for medicines, but she did not return. On 29.08.2018 during late night hours the prosecutrix returned home and divulged that when she was at Nirmand accused Ajay @ Jonny told her to board the vehicle sent by him, otherwise he will kill her father. Thereafter, a vehicle came, which took her to accused Ajay at Rampur. The accused took her to a hotel and he snatched the mobile phone of the prosecutrix and committed rape on her. The accused also threatened her not to divulge the incident to anyone. On the subsequent morning, accused dropped the prosecutrix at Nirmand bus stand and made her board the vehicle of Satish Verma (petitioner herein) and told that he will take her to her home. There was one more person in the vehicle, i.e. accused Roshal Lal. The petitioner took the vehicle to a lonely place and both of them committed rape on her on knifepoint. Thereafter, the petitioner took the prosecutrix to his room and in an inebriated state he committed rape on the prosecutrix. The petitioner and other accused also threatened the prosecutrix not to divulge the incident to anyone, otherwise they will kill the family of the prosecutrix. On the basis of the complaint, so made by the complainant to the police, police registered a case and the investigation ensued. The petitioner and other accused also threatened the prosecutrix not to divulge the incident to anyone, otherwise they will kill the family of the prosecutrix. On the basis of the complaint, so made by the complainant to the police, police registered a case and the investigation ensued. The prosecutrix was medically examined and as per the initial medical expert opinion, the history given was not consistent with the physical examination. The statements of the witnesses were recorded under Section 161 Cr.P.C. Accused Ajay and Roshan were arrested and medically examined. Police made the relevant recoveries and also prepared the spot map. The petitioner herein evaded his arrest and he was arrested from Nirmand on 03.09.2018. The petitioner was medically examined. The petitioner divulged that he threw the knife in the river Satluj. Police obtained date of birth record qua the prosecutrix. After completion of the investigation, police on 06.08.2019 challan was presented in the Court. Now the case is listed for examination of PWs 18 to 24. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence and there is every possibility that in case at this stage he is enlarged on bail, 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 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 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, 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. 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 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, 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, his role in the commission of the offence, the manner in which the offence is alleged to have been committed, the fact 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 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 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. 64 of 2018, dated 30.08.2018, under Sections 363, 366A, 376D, 506 IPC and Section 6 of POCSO Act, registered in Police Station Nirmand, District Kullu, H.P., shall be released on bail forthwith in this case, subject to her 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.