Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 350 (HP)

Joginder v. State Of Himachal Pradesh

2021-06-22

CHANDER BHUSAN BAROWALIA

body2021
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 2020, dated 31.08.2020, under Sections 376 and 506 IPC and Section 6 of the POCSO Act, registered at Police Station Tissa, District Chamba, 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 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. 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 31.08.2020, the prosecurtrix (name withheld) accompanied by her parents, made a report to the police that she is a student of 10th standard and about six months back her massi died, so her mother and elder brother went to the house of her massi. Her father went to forest for grazing cattle and younger brother went to school. As per the prosecutrix, on that day, she was all alone in the house and their mule somehow got untied, so she called one Joginder (petitioner herein) to help her to tie down the mule. The petitioner came and helped her, thereafter, the petitioner forcibly committed rape on her. The petitioner threatened her not to divulge the incident to anyone. After some days, the petitioner again committed rape on her by threatening her. The petitioner used to call the prosecutrix time and again, but she refused. Due to the fear, the prosecutrix did not divulge the incidents to her parents and ultimately on 30.08.2020, she narrated the entire incident to her family members. Upon the complaint, so made by the prosecutrix, police machinery was set into motion and a case under the apt sections was registered against the petitioner and the investigation ensued. The prosecutrix was medically examined and she was found pregnant for 22 weeks and 06 days. On 31.08.2020 the petitioner was arrested and was medically examined. Thereafter, the police recorded the statement of the prosecutrix under Section 164 Cr.P.C., police visited the spot of occurrence and all the codal formalities were completed. The prosecutrix was medically examined and she was found pregnant for 22 weeks and 06 days. On 31.08.2020 the petitioner was arrested and was medically examined. Thereafter, the police recorded the statement of the prosecutrix under Section 164 Cr.P.C., police visited the spot of occurrence and all the codal formalities were completed. Statements of the witnesses were recorded under Section 161 Cr.P.C. Record qua the date of birth of the prosecutrix was procured by the police and on 17.09.2020 the prosecutrix was sent to Child Welfare Committee, Chamba, and ultimately on 24.09.2020 the prosecutrix was sent to Naari Sewa Sadan, Mashobra, Shimla. During the course of further investigation, it was unearthed that the petitioner is related to the prosecutrix, as brother. As per the DNA report, the DNA profile obtained from the blood sample of the petitioner was not found consistent as biological father of DNA profile of the newborn child of the prosecutrix. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence, there is possibility that in case at this stage the petitioner is enlarged on bail, he may flee from justice or tamper with the prosecution witnesses, so the bail application of the petitioner be dismissed. 4. I have heard the learned Senior 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 considering the facts that in the DNA profile obtained from the blood sample of the petitioner was not found consistent, as biological father of DNA profile of newborn child of the prosecutrix, the fact that the petitioner is behind the bar for the last about ten months and also the fact that investigation is complete, challan stands presented in the learned Trial Court and even the prosecutrix has been examined, 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 may tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed. 6. In rebuttal the learned Senior Counsel for the petitioner has argued that the petitioner is behind the bars for the last about ten months 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 facts that the statement of the prosecutrix has already been recorded, the fact that DNA profile obtained from the blood sample of the prosecutrix was not found consistent with the DNA profile obtained from the newborn child of the prosecutrix and the fact that 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. 7. 7. At this stage, considering the manner in which the offence is alleged to have been committed by the petitioner, the age of the petitioner, who is only 26 years old, considering the facts that the investigation in the case is complete, challan stands presented in the learned Trial Court, custody of the petitioner is no at all required by the police, also considering the facts that the statement of the prosecutrix has been recorded by the learned Trial Court, the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, as he is permanent resident of the place, the petitioner cannot be kept behind the bars for an unlimited period, especially when nothing remains to be recovered at the instance of the petitioner, also considering the DNA report, which reveals that the blood sample of the petitioner is not consistent as biological father of the newborn child of the prosecutrix, the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, 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. 117 of 2020, dated 31.08.2020, under Sections 376 and 506 IPC and Section 6 of the POCSO Act, registered at Police Station Tissa, District Chamba, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of 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. (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.