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2020 DIGILAW 198 (HP)

Diwan Chand v. State Of Himachal Pradesh

2020-03-03

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. 117 of 2019, dated 21.12.2019, under Sections 363, 366, 376(3), 120B IPC and Section 6 of POCSO Act, registered in Police Station Janjehli, District Mandi, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. 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. 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 21.12.2019 the prosecutrix (name withheld) got her statement recorded under Section 154 Cr.P.C. with the police wherein she stated that on 17.12.2019 one Meena took her to Janjehli bazaar. Meena told the prosecutrix that she would marry her and asked to accompany her to Kutha. Later on, husband of Meena and his parents also accompanied them to Kutha. Near Kutha the prosecutrix was forcibly made to sit in a car, which was being driven by a boy and another boy was sitting in the vehicle. Thereafter, they reached village Sovali and Meena telephoned the brother of the prosecutrix and informed him that the prosecutrix has been married with Diwan Chand (petitioner herein), brother of Meena. Subsequently, Meena switched off her mobile phone. During the night, the petitioner forcibly committed sexual intercourse with the prosecutrix twice. Next day also prosecutrix was forcibly sexually molested by the petitioner. On 19.12.2019, at about 07:30 a.m. the petitioner and his mother dropped the prosecutrix at her home and asked her to divulge that she accompanied the petitioner on her own will and volition. Upon the statement so made by the prosecutrix, police registered a case and the investigation ensued. The prosecutrix was medically examined and scientific samples were sent for forensic analysis. Police visited the spot, prepared the spot map and also recorded the statements of the witnesses. Police also visited the Sovli village and prepared the spot map of the place of occurrence and lifted the scientific samples. On 22.12.2019 the petitioner was arrested and was medically examined. The prosecutrix was medically examined and scientific samples were sent for forensic analysis. Police visited the spot, prepared the spot map and also recorded the statements of the witnesses. Police also visited the Sovli village and prepared the spot map of the place of occurrence and lifted the scientific samples. On 22.12.2019 the petitioner was arrested and was medically examined. Police also procured records qua date of birth of the prosecutrix. The documents of the vehicle allegedly used in the commission of the crime were also seized. Other accused persons were also arrested and enlarged on bail by the Hon'ble High Court. As per the police, the petitioner with intent to marry her took her and he was assisted by other accused persons. As per the police, challan stands presented in the learned Trial Court on 17.02.2020 and report from RFSL is awaited. 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 records, 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 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. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when investigation is complete, challan stands presented in the Court and nothing is to be recovered at the instance of the petitioner, 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 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 learned Trial Court. He has further argued that the petitioner has married the prosecutrix on 17.12.2019. He has produced affidavit of Shri Devi Singh (father of the petitioner) wherein it is stated that the petitioner has married the petitioner. Lastly, he has argued that other accused persons have already been enlarged on bail by this Hon'ble High Court and the custody of the petitioner is not required by the police, so the petition be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the age of the petitioner, who is only 21 years of age, the fact that he has married the prosecutrix, the investigation in the case is complete, challan stands presented in the learned Trial Court, nothing is to be recovered at the instance of the petitioner, 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, his custody is not at all required by the police, other accused persons have already been enlarged on bail by this Hon'ble High Court, 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, 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. 117 of 2019, dated 21.12.2019, under Sections 363, 366, 376(3), 120B IPC and Section 6 of POCSO Act, registered in Police Station Janjehli, District Mandi, 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.