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2022 DIGILAW 33 (HP)

Balvir Sharma S/o Sh. Shiv Ram v. State of Himachal Pradesh

2022-01-24

SATYEN VAIDYA

body2022
ORDER : Petitioner is an accused in case registered vide FIR No. 68 of 2021, dated 12.09.2021 at Police Station Chopal, District Shimla, H.P. under Sections 376, 342, 34 of Indian Penal Code (for short “IPC”) and Section 4 of the Prevention of Children from Sexual Offences (for short “POCSO”) Act, 2012. Petitioner is in custody since 14.09.2021. 2. Petitioner has approached this Court for grant of bail, in above noted case, under Section 439 Cr. P.C., on the grounds that he has been falsely implicated in the case with a view to harass him unnecessarily. The allegation of petitioner is that his false implication is at the instance of persons having inimical relations towards him. He has nothing to do with the alleged offence. Even there is no allegation against him of sexual assault on the victim. Dinesh Kumar, the other co-accused in the case is employed by the petitioner as co-driver-cum-helper. As per petitioner, on 12.9.2021 he alongwith his co-driver-cum-helper Dinesh Kumar stopped the vehicle near place known as “Lani” for checking the condition of vehicle and for having some refreshments. Dinesh Kumar decided to sit in the vehicle. The petitioner visited nearby market to collect essentials for the journey, but on his return found the door of the truck opened and Dinesh Kumar was missing. It has been contended on behalf of the petitioner that he has no idea of the alleged incident. The challan in the case has been filed after completion of investigation. The prolonged incarceration of petitioner shall not serve any purpose. 3. Petitioner has further sought his bail by making averments that he is entitled for bail as a matter of right as principally the committal to jail is an exception. Merely levelling of serious charges is not sufficient to deny the petitioner benefit of bail. Petitioner has undertaken not to tamper with prosecution evidence and further not to make any inducement, threat or promise to the persons acquainted with the facts of the case. He has stated that he shall abide by all the terms and conditions as may be imposed against him. 4. In response, the status report has been filed by the respondent. Petitioner has undertaken not to tamper with prosecution evidence and further not to make any inducement, threat or promise to the persons acquainted with the facts of the case. He has stated that he shall abide by all the terms and conditions as may be imposed against him. 4. In response, the status report has been filed by the respondent. It has been stated on behalf of the respondent that on 12.9.2021 the mother of victim alongwith victim visited the Police Station and submitted a written complaint alleging inter alia, that the victim was only 16 years old. On 11.9.2021, the victim had left her home at about 3.00 p.m. to visit the house of her aunt at village Mattal. At about 5.00 p.m. she received information from her nephew telephonically that he had been informed by Ganesh Nepali R/o Chadoli that some person had sexually assaulted the victim in a truck near place “Lani” in a jungle. On this, the complainant visited “Lani” where the victim disclosed to her that when she was on her way to Mattal and had reached the jungle beyond “Lani” when it was already late, so she had started walking back towards her home, when a truck approached from the side of Mattal. The driver stopped the truck and gave her lift. Another person was also sitting in the truck. At some distance, in a jungle, the truck was stopped and driver alighted therefrom and the other person committed sexual assault on victim. The said other person thereafter got down from the truck and the driver came back, who also held the hand of victim, but the victim could escape therefrom. The registration number of the truck was HP-63-9174. The name of the person, who had committed sexual assault on victim was disclosed as Dinesh Kumar and petitioner was said to be the driver of the truck. Petitioner alongwith other co-accused were arrested. The investigation is complete and the challan is stated to have been filed in the Court. The age of the victim at the time of alleged crime was found to be 15 years 3 months 27 days. 5. I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and have gone through the status report and also the police file. 6. The age of the victim at the time of alleged crime was found to be 15 years 3 months 27 days. 5. I have heard learned counsel for the petitioner and learned Additional Advocate General for the State and have gone through the status report and also the police file. 6. It is true that the Court is not to minutely scan the evidence at the stage of adjudication of bail application, still in order to assess the prima-facie involvement of bail petitioner, the material on record cannot be ignored. 7. In Prasanta Kumar Sarkar vs Ashish Chatterjee and Another (2010) 14 SCC 496 , the Hon’ble Supreme Court has reiterated the well settled factors to be borne in mind while considering an application for bail as under: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 8. In the case in hand, the victim is child of approximately 15 years 4 months. There is nothing on record to suggest that the victim or her family has any personal enmity either with the petitioner or his co-accused Dinesh Kumar. There is also nothing on record to prima-facie impeach the credibility of the version given by the victim. 9. The facts on record suggest an inference that Dinesh Kumar had committed sexual assault on the victim in connivance with the petitioner. Mere fact that petitioner left the truck for some time allowing Dinesh Kumar to remain with victim in the vehicle and on his return held the hand of victim suggests that the petitioner and his co-accused had acted in connivance with each other and fortunately the victim had been able to run away from the place before being exposed to further sexual assault. 10. 10. Inhuman acts of committing sexual assault against children (minors), has attracted the attention of all stake-holders including the legislators and, therefore, the provisions relating to sexual assaults on minors have been made very stringent in the Indian Penal Code, besides the enactment of a special Act known as “The Protection of Children from Sexual Offence Act”. The laudable purpose of such legislations is to protect the children from offence of sexual assault, sexual harassment and pornography etc. The reason behind enactment of such legislation was the data collected by the National Crimes Records Bureau with respect to ever increasing cases of sexual offence against children. Even if the petitioner had not committed sexual assault on the victim, from the material on record, it can be prima-facie inferred that he has abetted the commission of offence. Section 17 of the POCSO Act, makes the abetment of offence under said Act punishable with sentence provided for the offence committed. 11. The facts of the case disclose the nature, gravity and seriousness of accusations. The offence as alleged against petitioner, if proved, will attract severe punishments as prescribed under Section 376 IPC as also Section 4 of the POCSO Act. The victim belongs to a poor family and in case of release of petitioner on bail, the possibility of petitioner trying to influence the victim and other material witnesses cannot be ruled out. As noticed earlier, this Court is prima-facie of the view that the implication of petitioner in the case is not without justification. 12. The petitioner had earlier also approached this Court for grant of bail by way of Cr.M.P.(M) No. 2042 of 2021. A co-ordinate Bench of this Court had rejected the bail of the petitioner vide order dated 22.11.2021. Petitioner has failed to reveal any change in circumstance after passing of aforesaid order dated 22.11.2021 by a coordinate Bench of this Court. It is trite that successive bail applications under Section 439 Cr.P.C. in the same FIR, is not maintainable unless some changed circumstances is shown, otherwise, the exercise of jurisdiction to entertain successive bail application amounts to review of previous order of the same Court, which is not permissible as held by the Hon’ble Supreme Court in Hari Singh Mann vs. Harbhajan Singh Bajwa and others (2001) 1 SCC 169 . 13. 13. In view of above discussion, there is no merit in the instant petition and the same is rejected. 14. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. Petition stands disposed of.