Research › Search › Judgment

Himachal Pradesh High Court · body

2020 DIGILAW 677 (HP)

Avinash Kumar v. State of Himachal Pradesh

2020-10-05

CHANDER BHUSAN BAROWALIA

body2020
JUDGMENT Chander Bhusan Barowalia, J. - The matter is taken up through video conference. 2. 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. 23 of 2019, dated 09.06.2019, under Sections 365, 376D and 506 IPC read with Section 34 IPC, registered in Women Police Station Nahan, District Sirmaur, Himachal Pradesh 3. 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. 4. Police report stands filed. As per the prosecution story, on 09.06.2019, the prosecutrix/victim (name withheld) got her statement recorded with the police, wherein she stated that on 08.06.2019, at about 11:15 p.m., when she, alongwith her friend Ankush, was standing at bus stand and when Ankush went to a shop for purchasing a cigarette for him, a white Alto car, stopped near to her. As per the prosecutrix, there were two boys inside the car and out of them a boy hastily came out and dragged her inside the car. She tried to raise hue and cry, but one of the boys gagged her mouth and pointed a knife at her. Thereafter, vehicle was speedily driven and taken to a secluded place, where she was sexually molested on the point of knife. Thereafter, the prosecutrix was taken to vegetable market, where also, she was sexually molested. She was kept inside the vehicle during the whole night and in the morning, at about 4/5 a.m., she was given her clothes back and dropped near Sanskrit College, Nahan. The prosecutrix telephoned her friend Ankush, who accompanied her to police station for lodging a case. Upon the statement, so made by the prosecutrix, police registered a case and the investigation ensued. The prosecutrix was medically examined and her statement under Section 164 Cr.P.C. was recorded. On 09.06.2019 both the boys, including the present petitioner, were arrested and medically examined. Police prepared the spot maps and recorded the statements of the witnesses. Police collected the relevant scientific samples and completed the investigation. The prosecutrix was medically examined and her statement under Section 164 Cr.P.C. was recorded. On 09.06.2019 both the boys, including the present petitioner, were arrested and medically examined. Police prepared the spot maps and recorded the statements of the witnesses. Police collected the relevant scientific samples and completed the investigation. Analyses of the forensic samples suggest that the sexual intercourse took place. As per the police, on 30.05.2020, supplementary challan stands presented in the learned Trial Court. During the course of investigation, it was unearthed that two more cases are pending against the petitioner. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence, there is anger in the society against the petitioner and there is possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper with the prosecution witnesses. 5. 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. 6. 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 permanent 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 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 learned Trial Court, nothing is to be recovered from the petitioner, custody of the petitioner is not at all required by the police and considering the fact that co-accused, Anil Kumar, already stands enlarged on bail by a co-ordinate Bench of this Court, so the bail application may 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. He has further argued that in case the petitioner is enlarged on bail, at this stage, he may flee from justice or tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed. 7. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence. He has further argued that in case the petitioner is enlarged on bail, at this stage, he may flee from justice or tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed. 7. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than one year and cannot be kept behind the bars for an unlimited period, especially when investigation is complete, challan stands presented in the learned Trial Court, considering the fact that co-accused Anil Kumar has already been enlarged on bail by a co-ordinate Bench of this Court and the custody of the petitioner is not at all required by the police, so the application be allowed and the petitioner be enlarged on bail. 8. At this stage, considering the fact that the petitioner is behind the bars for last more than one year and he cannot be kept behind the bars for an unlimited period, investigation in the matter is completed, nothing remains to be recovered at the instance of the petitioner, challan has also been presented before the learned Trial Court, custody of the petitioner is not at all required by the police, considering the fact that co-accused Anil Kumar has already been enlarged on bail by a co-ordinate Bench of this Court, the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, considering the overall material, which has come on record, and without discussing the same at this stage, 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. 23 of 2019, dated 09.06.2019, under Sections 365, 376D and 506 IPC read with Section 34 IPC, registered in Women Police Station Nahan, District Sirmaur, H.P., shall be released on bail forthwith in this case, subject to his 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. 9. In view of the above, the petition is disposed of. Copy dasti.