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2020 DIGILAW 300 (HP)

Shivam Khanduja v. State Of Himachal Pradesh

2020-05-30

VIVEK SINGH THAKUR

body2020
JUDGMENT Vivek Singh Thakur, J. - Status report stands filed. As per status report, mother of victim had approached the Police in Police Station Majra on 27.11.2019 with an application, whereupon rapat No. 2, dated 28.11.2019 was entered in the Police Station Majra, Tehsil Paonta Sahib, District Sirmaur, H.P. and as mother of victim had apprehension of violation of person of her daughter, whereupon medical examination was conducted and MLC of victim was obtained and in furtherance thereto, rapat No. 7 was entered and subsequently on the basis of statement of victim recorded under Section 154 Cr.P.C. at her home, FIR No. 185 of 2019, dated 28.11.2019 has been registered in Police Station, Majra, District Sirmour, H.P. under Sections 354A, 328 read with Section 34 IPC and Section 8 of Protection of Child from Sexual Offences Act, 2012 (in short 'POSCO Act').. 2. Victim in her statement recorded on 28.11.2019 has stated that she is student of +2 and on 27.11.2019 at about 4:30 P.M. she had left her house for attending tuition class and at that time she had received a call from Shivam to meet him for 5-10 minutes as they have not met since long and he had assured to drop her at the tuition class and thereafter Shivam along with Navneet had met her in Majra Bazar in Xylo vehicle of Navneet. Shivam was on driving seat, whereas Navneet was on seat of co-driver. She boarded the vehicle on back seat and thereafter vehicle was taken towards Paonta Sahib and near Melion, the vehicle was stopped and thereafter Navneet and Shivam had exchanged the seats and near Batapul, after parking the vehicle, both boys had went to shop and bought Sprite and packets of chips and thereafter they started back towards Majra. Near Suraj Pur, the vehicle was stopped and Sprite was served to her in disposal glass by Shivam. Navneet had consumed Beer whereas Shivam had taken Vodka. Shivam had given 2-3 glasses of Sprite to her. On asking by her to Shivam that taste of Sprite was different, Shivam had replied that it was her misconception. Thereafter Shivam started driving the vehicle and Navneet sat with her on the back seat and she was feeling headache and drowsiness. Navneet had consumed Beer whereas Shivam had taken Vodka. Shivam had given 2-3 glasses of Sprite to her. On asking by her to Shivam that taste of Sprite was different, Shivam had replied that it was her misconception. Thereafter Shivam started driving the vehicle and Navneet sat with her on the back seat and she was feeling headache and drowsiness. Navneet started teasing her with indecent behavior which was opposed by her and she had asked Shivam to stop Navneet but thereafter Shivam also started doing the same thing and vehicle was driven towards link road to village Melion and thereafter she did not know what happened and on opening eyes she found herself at her home. 3. During investigation Shivam and Navneet were arrested on 28.11.2019 and since then petitioner is behind the bars. 4. On the basis of date of birth record, age of victim has been found to be 17 years 6 months and 4 days. As per status report, age of Shivam is 19 years and it is stated that age of Navneet is about 20 years. Blood samples of victim and accused were also sent for chemical analysis. According to the Medical Officer, 231.68 mg of alcohol is found in the blood of victim and no ethyl alcohol could be detected in the blood samples of accused persons. According to the final opinion given by the Medical Officer, victim has been stated to be habitual. 5. It is also stated in the status report that co-accused Navneet has already been enlarged on bail by this High Court on 21st May, 2020. Admittedly according to status report, Navneet and Shivam are accused of committing identical offence in the same manner. However, enlargement of the petitioner on bail has been opposed on the ground that he may cause harm to the victim or disassociate or threaten the witnesses and may also jump over the bail. 6. Admittedly according to status report, Navneet and Shivam are accused of committing identical offence in the same manner. However, enlargement of the petitioner on bail has been opposed on the ground that he may cause harm to the victim or disassociate or threaten the witnesses and may also jump over the bail. 6. Learned counsel for the petitioner has submitted that co- accused, with identical alleged role in commission of offence, has already been released on bail and nothing has to be recovered from the petitioner and investigation is almost complete and petitioner is permanent resident of Village and Post Office Majra (Paonta Sahib), there is no possibility of jumping over the bail and petitioner is ready to abide by the conditions which may be imposed by this Court and in case of violation of any condition, including threatening, alluring or dissuading witnesses, the bail of the petitioner would be liable to be cancelled. 7. In the light of entire facts and circumstances stated in the status report and submissions made by learned counsel for the petitioner and keeping in view the contents of complaint and nature of the offence and manner in which it has been alleged to have been committed, I find that pending trial, no fruitful purpose shall be served by keeping the petitioner behind the bars at this stage. Therefore, petitioner is ordered to be released on bail in case FIR No. 185 of 2019, dated 28.11.2019, registered at Police Station Majra, District Sirmaur, H.P., under Sections 354A and 328 read with Section 34 IPC and Section 8 of POCSO Act, on his furnishing personal bond in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of trial Court, subject to following conditions:- (i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required; (ii) that the petitioner shall 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 Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses; (iii) that he shall not obstruct the smooth progress of the investigation/trial; (iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected; (v) that the petitioner shall not misuse his liberty in any manner; (vi) that the petitioner shall not jump over the bail; (vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial. 8. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. 9. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law. 10. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013. 11. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. 12. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, he may verify the order from the High Court website or otherwise. 13. The petition stands disposed of in the aforesaid terms.